EXECUTIVE ADVISOR AGREEMENT
EXHIBIT
10.20
This
Executive Advisor Agreement ("Agreement") is made and
entered into effective this 18th day
of November, 2008, by and between NTN Buzztime, Inc., a Delaware corporation
(the "Company"), and
Xxxxx Xxxxxxx, an individual ("Xxxxxxx"), on the following
terms and conditions:
RECITALS
A. The
Company desires to retain Xxxxxxx to provide certain services, and make his
experience and expertise available, to the Company, all on the terms
specifically described herein.
X. Xxxxxxx
desires to perform such services, and make his experience and expertise
available to the Company, all on the terms specifically described
herein.
AGREEMENT
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants and promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. Engagement. The
Company hereby engages Xxxxxxx to provide the Services (as defined below) to the
Company, and Xxxxxxx hereby accepts such engagement, all on the terms and
conditions specifically described herein.
2. Term.
2.1 Initial
Term. The initial term of this Agreement shall commence on
November 18, 2008 (the "Effective Date") and, unless
earlier terminated in accordance with Section 7 or unless extended in accordance
with Section 2.2, shall expire on the 90-day anniversary of the Effective Date
(the "Initial
Term").
2.2 Extensions. The
Company may, in its sole and absolute discretion, extend the term of this
Agreement for up to two additional periods of 45-days each by providing written
notice to Xxxxxxx, which notice shall state that the Company has elected to
extend the term of this Agreement. If the Company elects to extend
the term of this Agreement, the first additional 45-day period (the "First Extension Period") shall
commence on the day immediately following the end of the Initial Term and the
second additional 45-day period (the "Second Extension Period")
shall commence on the day immediately following the end of the First Extension
Period. In order to extend the term of this Agreement for the First Extension
Period, the Company shall provide the written notice required by this Section
2.2 to Xxxxxxx at any time before the end of the Initial Term. In order to
extend the term of this Agreement for the Second Extension Period, the Company
shall provide the written notice required by this Section 2.2 to Xxxxxxx at any
time before the end of the First Extension Period.
3. Scope of
Service. In exchange for the compensation set forth in Section
4, Xxxxxxx shall provide the services to the Company described in Exhibit A attached
hereto (the "Services"). In
providing the Services, Xxxxxxx will work with all levels of management and will
report to the board of directors of the Company or a committee
thereof. Xxxxxxx shall not, without the prior written consent of the
Company, subcontract, delegate or otherwise engage or permit any third party to
perform any portion of the Services.
4. Service
Fee. As full and complete compensation for Xxxxxxx'x provision
of the Services, the Company shall pay Xxxxxxx a fee ("Service Fee") in the amount of
$20,000 per month in arrears (pro rated if necessary) payable on or before the
15th
of each month, with the first payment due on December 15, 2008 for services
rendered from November 18, 2008 through November 30, 2008. In
connection with performing the Services, Xxxxxxx is authorized to incur on
behalf and for the benefit of, and shall be reimbursed by, the Company for
reasonable business expenses, provided that such expenses are substantiated in
accordance with the Company's policies. Notwithstanding the foregoing, the
Company and Xxxxxxx recognize that the performance of the Services may require
Xxxxxxx to xxxxxx with the Company's legal advisors. The Company
shall be responsible for the payment of any legal fees billed to the Company by
its legal advisors for time spent conferring with Xxxxxxx relating to the
Services.
5. No Other
Benefits. Xxxxxxx is an independent contractor of the Company
and as such is not entitled to any benefits, or to participate in any insurance
plan or other fringe benefit program, that the Company may make available or
furnish to its employees.
6. Relationship of the
Parties. Notwithstanding any provision hereof, for all
purposes of this Agreement, Xxxxxxx shall be and act as an independent
contractor and not as an employee, partner, joint venturer or agent of the
Company. Xxxxxxx shall not have authority to act on behalf of or to
represent or bind the Company in any manner. Xxxxxxx is an independent
contractor and is engaged to render professional services only and any payments
made by the Company to Xxxxxxx are compensation solely for such services
rendered. Xxxxxxx is solely responsible for all taxes, withholdings
and other statutory or contractual obligations of any sort. Xxxxxxx agrees to
defend, indemnify and hold the Company harmless from any and all claims,
damages, liability, attorneys' fees and expenses on account of (i) an alleged
failure by Xxxxxxx to satisfy any such obligations or any other obligation
(under this Agreement or otherwise) or (ii) any other action or inaction of
Xxxxxxx.
7. Termination. Either
party may terminate this Agreement for any reason upon at least 15-days prior
written notice. If the Company terminates this Agreement, upon
receipt of the Company's written notice of termination, unless stated to the
contrary in such notice, Xxxxxxx shall immediately cease performing any of the
Services. If this Agreement is terminated pursuant to this Section 7,
the Company's sole liability to Xxxxxxx shall be payment of that portion of the
Service Fee earned through the date of termination set forth in the notice of
termination, less any payments previously made to Xxxxxxx. If the
Company paid any Service Fee to Xxxxxxx in advance, Xxxxxxx agrees to return to
the Company any amount of the Service Fee to which Xxxxxxx it not entitled as a
result of the termination of this Agreement.
8. Confidentiality and
Proprietary Rights. Xxxxxxx hereby acknowledges that in
performing the Services he will make use of, acquire and add to confidential
information of a special and unique nature and value relating to the Company and
its strategic plans and financial operations, including, without limitation, all
information, data, plans, strategies, ideas, documents and all other business,
professional or proprietary information of the Company, whether related to the
performance of the Services or not. Xxxxxxx further recognizes and acknowledges
that all such confidential information is the exclusive property of the Company,
is material and confidential, and is critical to the successful conduct of the
business of the Company. Xxxxxxx hereby covenants and agrees that he
will use confidential information for the benefit of the Company only and shall
not at any time, directly or indirectly, without the Company's prior written
consent, divulge, reveal or communicate any confidential information to any
person, firm, corporation or entity whatsoever, or use any confidential
information for any reason other than the performance of the Services and not
for his own benefit or for the benefit of others. Confidential
information does not include any information which has become publicly and
widely known and made generally available through no wrongful act of Xxxxxxx or
of others who were under confidentiality obligations as to the information
involved. All reports, plans, documents and other confidential
information furnished to Xxxxxxx by the Company shall be returned upon
completion of the Services to be performed hereunder.
9. Injunctive
Relief. Xxxxxxx acknowledges that Xxxxxxx'x breach of the
covenants contained in Section 8 would cause irreparable injury to the Company
and agrees that in the event of any such breach, the Company shall be entitled
to seek temporary, preliminary and permanent injunctive relief without the
necessity of proving actual damages or posting any bond or other
security.
10. Agreement to
Arbitrate. Any controversy arising out of or relating to this
Agreement, the enforcement or interpretation of this Agreement, or because of an
alleged breach, default or misrepresentation in connection with any of the
provisions of this Agreement, shall be submitted to arbitration in San Diego
County, California, before a sole arbitrator selected from Judicial Arbitration
and Mediation Services, Inc. or its successor ("JAMS"), or if JAMS is no
longer able to supply the arbitrator, such arbitrator shall be selected from the
American Arbitration Association; provided, however, that provisional injunctive
relief may, but need not, be sought in a court of law while arbitration
proceedings are pending, and any provisional injunctive relief granted by such
court shall remain effective until the matter is finally determined by the
arbitrator. In no event shall the request for arbitration be made after the date
when institution of legal or equitable proceedings based on such claims would be
barred by the applicable statute of limitations. The arbitration
shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules
and Procedures, subject to the following: the arbitrator shall permit adequate
discovery and is empowered to award all remedies otherwise available in a court
of competent jurisdiction (including injunctive relief as contemplated by
Section 9 or otherwise); and the arbitrator shall issue an award in writing and
state the essential findings and conclusions on which the award is
based. Judgment on the award may be entered in any court having
jurisdiction. The parties acknowledge and agree that they are hereby waiving any
rights to trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other in connection with any matter whatsoever
arising out of or in any way connected with any of the matters referenced in the
first sentence of the first paragraph of this section. If either
party shall commence an action or proceeding to enforce any provisions of this
Agreement, then the prevailing party in such action or proceeding shall be
awarded its reasonable attorneys' fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such action or proceeding
to be paid for by the non-prevailing party.
11. Miscellaneous
Provisions. The following provisions shall apply to this
Agreement:
11.1 Survival. Sections
8 ("Confidentiality and Proprietary Rights"), 9 ("Injunctive Relief"), 10
("Agreement to Arbitrate"), and 11 ("Miscellaneous Provisions") of this
Agreement shall survive the termination of this Agreement.
11.2 Notices. Any
and all notices, demands or other communications required or permitted to be
provided under this Agreement shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice is
delivered via email to the email address set forth on the signature page hereto
on or before 5:00 p.m. (San Diego time) on a business day and a copy of said
notice is sent via first-class mail, postage prepaid, to the address set forth
on the signature page hereto, (b) the next business day after the date of
transmission, if such notice is delivered via email to the email address set
forth on the signature page hereto on a day that is not a business day or later
than 5:00 p.m. (San Diego time) on any business day and a copy of said notice is
sent via first-class mail, postage prepaid, to the address set forth on the
signature page hereto, (c) the business day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service to the address set
forth on the signature page hereto, (d) the third business day following the
post xxxx on the envelope containing the notice, if deposited it in the United
States mails, registered or certified, postage prepaid and return receipt
requested, and mailed to the address set forth on the signature page hereto, or
(e) upon actual receipt by the party to whom such notice is required to be
given. Any address may be changed by giving 10 days advance written
notice of such change to the other parties.
11.3 Further
Acts. Each party agrees to perform any further acts and to
execute and deliver any further documents reasonably necessary or proper to
carry out the intent of this Agreement.
11.4 Time. Time
is of the essence with respect to all provisions of this Agreement.
11.5 Entire
Agreement. This Agreement, including its exhibits, constitutes
the entire agreement between the Company and Xxxxxxx concerning the subject
matter hereof and supersedes any prior agreements between the parties concerning
said subject matter. This Agreement may not be modified or amended
except by writing signed by both parties. The exhibits referred to in
this Agreement shall be construed with and as an integral part of this Agreement
to the same extent as if they were set forth verbatim in this
Agreement.
11.6 Assignment. The
respective rights and obligations of Xxxxxxx shall not be assignable. Subject to
such restriction on assignment, this Agreement shall be binding upon and inure
to the benefit of each party and its successors and assigns.
11.7 Choice of
Law. This Agreement shall be deemed to be a contract under the
laws of the State of California and for all purposes shall be construed and
enforced in accordance with the internal laws of said state without regard to
the principals of conflicts of law.
11.8 Severability. If
any provision of this Agreement is determined to be invalid or unenforceable,
such invalidity or unenforceability shall attach only to such provision and
shall not in any manner affect or render invalid or unenforceable any other
provision of this Agreement.
11.9 Counterparts;
Facsimile. This Agreement may be executed in one or more
counterparts, all of which taken together shall be deemed one
original. Facsimile and electronic (i.e., PDF) signatures shall be as
effective as original signatures.
11.10 No
Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
(Signature
Page Follows)
IN
WITNESS THEREOF, the parties hereto have each executed or cased to be executed
this Agreement as of the date first written above.
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Xxxxxxx:
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Company:
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/s/
Xxxxx
Xxxxxxx
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NTN
Buzztime, Inc., a Delaware corporation
/s/
Xxxx
Xxxx
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Xxxxx
Xxxxxxx
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By:
Xxxx Xxxx
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Its:
Chairman of the Board of Directors
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Exhibit
A
NTN
BUZZTIME, INC.
Services
[Not
Included]
