Exhibit 3.2
CONSULTING AGREEMENT
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This Consulting Agreement (the "Agreement") is made as of January 1, 1997
by and between NTN Communications, Inc., a Delaware corporation (the "Company"),
and Xxxxxx X. Xxxxx("Consultant").
1. Consulting Arrangement. The Company shall employ Consultant, and
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Consultant shall serve the Company as a Consultant.
2. Duties. Consultant will perform consulting services for the Company
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regarding matters as may reasonably be requested from time to time by the
Company, provided that such requests shall not require a substantial portion of
Consultant's time. The failure of Consultant to perform consulting services
hereunder will not permit the Company to withhold any amounts owing to
Consultant pursuant to the Resignation and General Release Agreement dated as of
December 31, 1996.
3. Term. The term of the Agreement shall be for the three year period
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commencing January 1, 1997 and ending on December 31, 1999.
4. Compensation. In consideration of Consultant's services pursuant to
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Paragraph 2 hereof, the Company hereby agrees that, as of the date hereof:
a. The expiration date of Consultant's existing warrants to purchase
200,000 shares of Common Stock of the Company with an exercise price of $2.00
per share shall be extended to June 15, 2002.
b. Company shall waive any provision in any Stock Option Plan
Agreement or Grant which requires the exercise of such options within a
specified period of time following termination with respect to the following
options: (a) 200,000 options to purchase Common Stock of the Company with an
exercise price of $4.50 per share having an expiration date of August 4, 2003;
and (b) 200,000 options to purchase Common Stock of the Company with an exercise
price of $3.50 per share having an expiration date of November 4, 2006.
c. The expiration date of Consultant's existing warrants to purchase
150,000 shares of Common Stock of the Company with an exercise price of $4.75
shall be extended to January 15, 2003.
5. Expenses. All reasonable business expenses incident to the rendering
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of services by Consultant hereunder which are not extraordinary and have been
previously approved by the Company, will be paid or reimbursed by the Company
subject to the submission being in accordance with the Company's policies in
effect from time to time.
1.
6. Non-Disclosure. Consultant will not at any time after the date of this
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Agreement divulge, furnish, or make accessible to anyone (other 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, or 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.
Consultant agrees that for a period of 36 months from the date hereof
Consultant shall not, directly or indirectly, without the prior written consent
of Company:
a. solicit, entice, persuade or induce any employee, consultant, agent
or independent contractor of Company, or of any of the subsidiaries or
affiliates of Company to terminate his or her employment with Company, or such
subsidiary or affiliate, to become employed by any person, firm or corporation
other than Company, or such subsidiary or affiliate or approach any such
employee, consultant, agent or independent contractor for any of the foregoing
purposes, or authorize or assist in the taking of any such actions by any third
party; or
b. directly or indirectly own, manage, control, invest, or participate
in any way in, consult with or render services for any person or entity (other
than Company), or any of the subsidiaries or affiliates of Company engaged in
any business in direct competition with the primary businesses presently
conducted by Company, or any of the subsidiaries or affiliates of Company.
Notwithstanding anything in this Section 23b to the contrary, nothing in this
Agreement shall limit Consultant's right to hold and make passive investments
not in excess of 2-1/2% of the outstanding Common Stock of any publicly traded
entity.
7. Remedies. The Company may pursue any appropriate legal, equitable or
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other remedy, including injunctive relief, in respect of any failure to comply
with the provisions of Section 6 hereof, it being acknowledged by Consultant
that the remedy at law for any such failure would be inadequate.
8. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed to be one and the same instrument.
9. Modification. This Agreement may not be changed or terminated orally
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but only by an agreement in writing signed by the parties hereto.
10. Interpretation. Each party has cooperated in the drafting and
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preparation of this Agreement. Hence, in any construction to be made of this
Agreement, the same shall not be construed against any party on the basis that
the party was the drafter.
2.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
NTN COMMUNICATIONS, INC.
By:
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AGREED:
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Xxxxxx X. Xxxxx
3.
