EMPLOYMENT AGREEMENT President of Programming Between Michael Berk And Players Network January 1, 2005
President
of Programming
Between
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And
January
1, 2005
TABLE
OF CONTENTS
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Page
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Section
1. Employment
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1
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1.1
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Term
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1.2
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Duties
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1
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(a)
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Capacity
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1
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(b)
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Schedule
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2
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(c)
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Key
Man Insurance
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2
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1.3
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Compensation
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2
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(a)
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Base
Salary
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2
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(b)
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Royalty
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3
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(c)
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Certain
Benefits
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3
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(d)
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Signing
Bonus
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3
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(e)
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Annual
Performance Bonus
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4
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(f)
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Reimbursement
of Expenses
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4
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(g)
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Severance
Compensation for Termination Without Cause
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4
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(h)
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Most
Favored Nations Benefits; Incentive Stock Option Plan
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4
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(i)
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Executive
Assistant
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4
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Section
2. Nondisclosure and Noncompetition
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5
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2.1
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Nondisclosure
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5
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2.2
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Noncompetiton
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5
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2.3
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Specific
Performance
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5
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Section
3. Termination
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6
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3.1
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Death
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6
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TABLE
OF CONTENTS
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Page
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3.2
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Cause
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6
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Section
4. Indemnification
of Employee
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6
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Section
5. Miscellaneous
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6
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5.1
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Amendment
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6
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5.2
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Expenses
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7
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5.3
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Mitigation
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7
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5.4
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Entire
Agreement
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7
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5.5
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Notices
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7
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5.6
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Successors
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8
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5.7
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Governing
Law; Venue
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8
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5.8
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Severability
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8
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5.9
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Waivers
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8
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5.10
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Headings
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8
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5.11
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Counterparts
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8
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5.12
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Enforcement
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8
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5.13
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Legal
Representation
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8
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President
of Programming, Players Network
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”)
is made
as of January 1, 2005, by and between ▇▇▇▇▇▇▇ ▇▇▇▇ (“Employee”)
and
Players Network, a Nevada corporation (“Employer”
or the
“Company”).
WHEREAS,
Employee is a major continuing creative force within Employer and
essential
to its growth and development.
WHEREAS,
Employee’s abilities and services are unique and essential to the
prospects
of Employer.
AGREEMENT
NOW,
THEREFORE,
in
consideration of the mutual covenants set forth below, the parties hereby agree
as follows.
Section
1. Employment.
1.1
Term.
Employer
shall employ Employee, and Employee shall serve Employer for Five (5) years
commencing on the date of this Agreement subject to the provisions set forth
below.
1.2
Duties.
(a)
Capacity. So
long
as he is employed by Employer, Employee shall be
employed
as President, of Programming Players Network in Las Vegas and will be an
employee of the Employer at all times during the term of this Agreement.
Employer and Employee acknowledge and agree that Employee’s position is
President of Programming and shall be entitled to the rights and benefits that
are afforded to the responsibilities of a Senior Executive Officer. Employee
will report directly to the Company’s Chief Executive Officer and or Board of
Directors. Employee will also serve as a member of the Board of Directors as
allowed by the SEC with regards to allowances of day-to-day operational
executives as board mambas. Board scat is not guaranteed and will be voted
on
each year at company annual shareholder meeting.
The
duties and corresponding authority would include, but are not limited to,
overseeing the development of content for Players Network VOD, Broadband,
wireless, and television programming. This includes working with other Players
Network management to develop strategic integrated product placement,
sponsorship, branding, and marketing as it pertains to content and programming
development. Employees responsibilities also include working on the acquisition
of programming, co-productions, original in-house productions, and the outsource
production services of the Company’s soundstage and production capabilities with
a focused direction to increase the Company’s revenue and share holder value.
Day
to
day operational duties include, but not be limited to, working with other
writers, producers, directors, production companies and on camera talent in
order to execute and package projects. Participate in the creative and business
direction of the company, and, working directly with the Company’s other senior
management, consultants and advisors. In the exercise of his duties, Employee
will comply with all policies and procedures of the Employer as it relates
to
hiring and discharging employees that directly or indirectly report to Employee.
He will also provide input regarding compensation including raises and bonuses
for senior management employees to the Board of Directors or its compensation
committee as directed and required by compensation policies established by
the
Board of Directors.
(b)
Schedule.
So
long
as he is employed by Employer, Employee shall
devote
the majority of Employee’s working time and attention, as necessary, to
faithfully and fully carryout his duties described herein; provided, however,
Employee may (ii) serve as a Director of other business organizations with
the
prior written approval of Employer, (ii) devote time to and invest in
non-competing side activities, provided that such activities do not individually
or in. the aggregate interfere with his duties so as to adversely affect
Employer’s business. Employee shall at all times perform his duties and
obligations faithfully, diligently and to the best of Employee’s ability.
(c)
Key
Man Insurance.
Employer
may for its benefit and at its own expense insure Employee’s life. Employee
agrees to submit to such physical examination and supply such information as
may
be reasonably required in connection therewith.
1.3 Compensation.
As
compensation for the services to be rendered during such period and the other
obligations undertaken by Employee hereunder, Employee shall be entitled to
the
following compensation:
(a)
Base
Salary.
Subject
to increases pursuant to the cost of living adjustment described below, Employer
shall pay to Employee an annual base salary of One Hundred and Fifty Thousand
Dollars ($150,000) during the term of this Agreement (the “Base
Salary”)
such
greater amount as may be determined upon a review of Employee’s performance to
be undertaken pursuant to Company policy regarding performance reviews by the
Board of Directors at least once annually. Employee’s Base Salary shall be
payable in accordance with Employer’s standard payroll procedures. Employee’s
Base Salary at the commencement of the second and each subsequent year shall
be
adjusted to provide for all cost of living increases based upon the percentage
increase (if any) in the Consumer Price Index for All Urban Consumers (l967=l00;
All Cities), prepared by the United States Bureau of Labor Statistics, or any
successor thereto, over said Index in effect at the commencement of the
preceding calendar year.
(1)
In
the event the Board of Directors determines that the Company cannot afford
to
pay Employee any portion of his Base Salary, Employee may, at his sole option
elect one of the following:
a.
Agree
to defer receipt of his Base Salary until such time as the Company has the
funds
to pay him. In the event that Employee elects this option, the unpaid salary
shall be paid with no interest, However, the Company, as additional
compensation, shall immediately issue Employee an amount of Common Stock equal
to 20% of the deferred Salary based upon a market value determined to be the
average 30 day trading price prior to each such election; or,
b.
Elect
to convert all, or a portion of the unpaid Salary into Common Stock at a market
value, equal to 80% of the average 30-day trading price prior to each election.
(1)
In the
event the Company receives funding in excess of Two Million Five Hundred
Thousand Dollars ($2,500,000) in net proceeds the Employee’s Base Salary will
increase to $225,000 effective on the next scheduled pay period following the
close of such $2,500,000 or more. At no time will employee receive less than
any
other senior employee except the CEO.
(b)
Royalty.
Employer
shall pay Employee and his successors in interest a royalty in perpetuity (the
“Royalty”)
in the
amount specified below with respect to Employer properties created in connection
with Players Network’s programming, programming names and logos presented in any
form, application or medium, which meet all three of the following criteria:
(i)
The
intellectual property or product was conceived and documented by Employee and
approved in addendum A of this Agreement. All future property or product
potentially subject to this Royalty must be reviewed and approved during the
course of a regularly scheduled Board of’ Directors meeting. Any request by
Employee to make such property or product eligible cannot be unreasonably
withheld as long as Employee meets the criteria outlined within section (b)
of
this Agreement.
(ii)
The
intellectual property or product is licensed, sold or otherwise exploited by
entities other than Employer’s own broadcast applications, including any third
party licenses, Pay Per View and Merchandising. For example, if a show conceived
by Employee is licensed to a market where Employer is paid a fee for such
license, and then Employee will be eligible for a Royalty payment.
(iii)
Such other entities pay a fee royalty, rental, purchase price or other payment
to Employer in exchange for title to such products or intellectual property
or
for a license to make, use or sell such products or intellectual property.
(iv)
In
the event of a change in ownership, Employee will have the option to negotiate
a
buyout agreement of all Employee’s intellectual property to which he would be
entitled to receive Royalties, directly with new controlling ownership. If
all
of the foregoing criteria are met with respect to any such intellectual property
or product, Employer shall account in writing for and pay to Employee the
Royalty in amount equal to ten percent (10%) of all Adjusted Gross Revenues
subject to Royalty payments received by Employer during the preceding calendar
quarter. Adjusted Gross revenues are defined as all moneys collected after
deducting direct commissions and/or distribution fees, if any. In no
circumstance shall the Company be required to pay a Royalty of more than 10%
total and in the event that someone in addition to the Employee claims to be
due
a Royalty, the Board of Directors shall decide who is paid the Royalty, or
in
what proportion the Royalty is paid to the various claimants, and the Board’s
decision shall be final. Employer shall pay to Employee the Royalty within
twenty (20) days following each calendar quarter notwithstanding the expiration
or termination of this Agreement. Employer shall pay the Royalty to Employee’s
estate and successors-in-interest following his death. Employee and his
successors-in-interest shall have the right to audit the books and records
of
Employer to determine whether the Royalty has been paid properly in
with
the
requirements of this Agreement, notwithstanding the expiration or termination
of
this Agreement. Employer hereby agrees that any and all future transactions
entered into by the Company, which affect Employee’s rights under this Section
1.3(b), will provide for an assignment or assumption of such Royalty obligation.
(c) Certain
Benefits.
Employee
shall be entitled to participate in all employee benefit programs established
by
the Company from time to time for employees or executives of Employer to the
extent that executives or senior management employees of Employer generally
are
eligible to participate in such programs. Employee shall be further entitled
to
an annual paid vacation of four (4) weeks and other benefits in accordance
with
Employer’s policies as from time to time established by the Company or the
Employer’s Board of Directors (the “Board”)
for
employees and/or senior executive officers and the following: (i) full medical,
dental and vision insurance plans for Employee and his immediate family; (ii)
a
per month automobile leasing, operating, insurance and maintenance expense
allowance of $700 per month or the cash equivalent in the form of expense
reimbursement (iii) cell phone and other communication device acquisition d
operating expenses. It is understood that payment of all the above benefits
are
contingent on the Company’s ability to afford such benefits. At such time as the
Company can afford such benefits, Employee will not be eligible for any
retroactive compensation for benefits.
(d) Signing
Bonus upon
signing Employee will receive 400,000 shares of fully vested stock options,
executable at 30 cents for a period of 36 months from the date of issuance.
(e) Annual
Performance Bonus.
Employer shall pay Employee an annual bonus, subject to meeting mutually agreed
upon annual performance criteria mutually established by Employer and Employ
between February 1 and April 1 of each year of this Agreement. Employer and
Employee agree to establish the annual performance criteria for the first year
of this Agreement within 45 days after execution of this Agreement
(f)
Reimbursement
of Expenses.
Subject
to such rules and procedures, which from time to time are reasonably specified
by the Employer, Employer shall reimburse Employee for reasonable and necessary
business expenses incurred in the performance of Employee’s duties under this
Agreement, including without limitation travel, entertainment, gifts and
promotional expenses. In many cases, the Employee’s expenses will be charged
directly to the Company’s corporate credit card.
(g)
Severance
Compensation for Termination Without Cause.
In the
event that Employee’s employment is terminated by Employer for any reason
including but not limited to an involuntary change of position (other than
as a
result of the termination of this Agreement pursuant to Sections
3.1. or 3.2)
or
terminated by Employee as a result of a material breach of this Agreement by
Employer (any of the foregoing, an “Involuntary
Termination”),
Employee shall be entitled to continue to receive his Base Salary and all
benefits, including but not limited to automobile and Employee and family health
insurance for the remainder of the Term of this Agreement as if the Agreement
had not been terminated. In addition, Employee shall receive from Employer,
on
the effective date of the Involuntary Termination, a lump sum amount equal
to
two times the Emp1oyee’s then current Base Salary plus the full annual bonus
then in effect without regard to the performance requirements associated with
that bonus. Further, all stock options that Employee would be eligible through
the natural term of this Agreement will immediately become fully vested. In
the
event Employee or his family is ineligible under the terms of any insurance
to
continue to be covered, the Company shall provide Employee and Employee’s family
with substantially equivalent coverage through other sources or will provide
Employee with a lump sum payment equal to the agreed upon value of the
continuation of such insurance coverage to which Employee is entitled under
this
Section
1.3(g).
(h)
Most
Favored Nations Benefits; Incentive Stock Option Plan.
Employee shall participate in all stock, option, and other executive pools
and
programs offered to any other executive officers or employees of Employer or
any
of its divisions or subsidiaries. Within 45 days from the date of this
Agreement, Employer shall adopt a Stock Option Plan consistent with Internal
Revenue Code of 1986, as amended, and Nevada corporate law requirements and
grant to Employee such stock options as may be determined by Employer or the
Board no later than 20 days after such stock option plans are adopted and such
grant complies with the terms of this Section 1.3(h).
(i)
Executive
Assistant.
Employer shall provide Employ with a full-time Executive
Assistant of Employee’s choosing which at a minimum shall be comparable to
Employee’s
staff member currently providing such services to Employee. Such Executive
Assistant shall be available to undertake other assignments for staff members
as
the Assistant’s time and expertise permits.
Section
2. Nondisclosure
and Noncompetition.
2.1 Nondisclosure.
Employee
recognizes the interests of Employer in maintaining the confidential nature
of
its proprietary and other business and commercial information.
In consideration thereof, Employee shall not (except as authorized in writing
by
Employer or in the ordinary and normal course of performing his duties
hereunder) during his employment hereunder and for a period ending one (1)
year
after the date Employee’s employment is terminated for any reason, directly or
indirectly, publish, disclose or use, or authorize anyone else to publish,
disclose or use, any secret or confidential matter, or proprietary or other
information not otherwise available in the public domain and acquired by
Employee during his employment hereunder or through representation on Employer’s
Board, relating to any aspect of the operations, activities, or obligations
of
Employer, including, without limitation, any confidential material or
information relating to Employer’s business, customers, suppliers, trade or
industrial practices, trade secrets, technology, know-how or intellectual
property. All records, files, data, documents and the like relating to
suppliers, customers, costs, prices, systems, methods, personnel, equipment,
and
other materials relating to Employer shall be and remain the sole property
of
Employer. Upon termination of Employee’s employment hereunder, Employee shall
not remove from Employee’s premises or retain any of the materials described in
this Section
2.1,
except
with the prior written consent of Employer and such materials in Employee’s
possession shall be delivered promptly to Employer. Employer hereby agrees
and
acknowledges that in event that Employee is terminated for an Involuntary
Termination then the provisions of this entire Section 2 shall immediately
terminate in its entirety.
2.2
Noncompetition.
Employee
covenants and agrees that, except for activities, which are expressly permitted
by Section
1.2(b):
(a)
So
long as he is employed by Employer, Employee shall not, without the prior
written consent of Employer, directly or indirectly, as an employee, employer,
agent, principal, proprietor, partner, stockholder, consultant, director, or
corporate officer, engage in any business that is in competition with the
business of Employer.
(b)
If
the scope of any restrictions contained in subparagraph (a) is too broad to
permit enforcement of such restrictions to their full extent, then such
restrictions shall be enforced to the maximum extent permitted by law, and
Employee hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restrictions.
2.3
Specific
Performance.
Employee
acknowledges and agrees that Employer’s remedies at law for a breach or
threatened breach of any of the provisions of this Section 2 would be inadequate
and, in recognition of this fact, Employee agrees that in the event of such
a
breach or threatened breach, in addition to any remedies at law. Employer,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy, which may then be available.
Section
3.
Termination.
3.1 Death.
This
Agreement shall terminate upon Employee’s death. In the event of Employee’s
death while in the ...ploy of Employer, Employer shall pay to such person or
persons as the Employee may specifically designate (successively or
contingently) by filing a written, beneficiary designation with Employer during
Employee’s lifetime (“Designated Beneficiaries”) 60% of Employee’s Base Salary
as in effect immediately prior to Employee’s death, payable to Employee’s
Designated Beneficiaries at the beginning of each month for a period of Twelve
(12) months following Employee’s death.
3.2
Cause.
Employer
shall have the right to terminate this Agreement and Employee’s employment
hereunder for cause upon written notice to Employee. The term “cause”
shall
mean Employee must have (i) been willful, gross or persistent in Employee‘s
inattention to Employee’s duties or Employee committed acts which constitute
willful or gross misconduct and, after written notice of the same has been
given
to Employee and he has been given an opportunity to cure the same within thirty
(30) days after such notice; (ii) committed fraud or (iii) been convicted of
a
felony. If Employee’s employment is terminated for cause, as defined above, and
Employee does not consent to such termination, such termination shall not be
considered effective and Employee’s rights under this Agreement during the Term
of Employment shall continue until the existence of such cause has been
determined by an independent arbitrator appointed by the American Arbitration
Association and either party’s rights to petition a court of law for a decision
in the matter have been exhausted. In connection with the appointment of an
arbitrator, both parties agree to submit the question to final and binding
arbitration by an appointee of the American Arbitration Association and to
cooperate with the arbitrator, with all costs of arbitration paid by the
Employer.
Section
4. Indemnification
of Employee. Employer
shall defend and indemnify Employee at Employer’s sole expense to the full
extent of Nevada law with respect to all claims, causes of action and
adversarial proceedings of every nature to which Employee is or may become
subjected in his role as an Officer or Director of Employer and Employee shall
have the right to select his own counsel. Employer’s indemnification duty shall
survive the termination or expiration of this Agreement. In the event that
Employer elects to change coverage or carriers for its Directors and Officers
insurance (“D&O
Insurance”),
Employer shall notify Employee of such change and arrange to purchase, at a
minimum, a five-year tail policy for such former insurance policy at the sole
expense of Employer and deliver evidence of such tail policy to Employee within
five (5) days after termination of Employer’s existing D & O Insurance.
Section
5.
Miscellaneous.
5.1 Amendment.
This
Agreement may be amended only in writing executed by the parties hereto, which
has been approved in advance by a majority of the disinterested members of
the
Board.
5.2 Expenses.
Employer shall pay or reimburse Employee for all costs and expenses, including
court costs and reasonable attorney’s fees, incurred by Employee as a result of
any claim, action or proceeding arising out of, or challenging the validity
or
enforceability of this Agreement or any provision hereof.
5.3
Mitigation.
In the
event of a termination of Employee’s employment for any reason, Employee shall
not be required to seek, other employment. In addition, no amount payable under
this Agreement shall be reduced by any compensation earned by Employee as a
result of employment by another employer after such termination of employment
with Employer.
5.4 Entire
Agreement.
This
Agreement and the other agreements expressly referred to herein set forth the
entire understanding of the parties hereto regarding the subject matter hereof
and supersede all prior contracts, agreements, arrangements, communications,
discussions, representations and warranties, whether oral or written, between
the parties regarding the subject matter hereof.
5.5
Notices.
Any
notice, request, consent and other communication required or permitted hereunder
shall be in writing and shall be deemed to have been duly given upon the earlier
of receipt or five (5) days after being sent by registered or certified mail,
return receipt requested, postage prepaid, to the parties, and to the persons
to
whom copies shall be sent, at their respective addresses set forth below.
| If to Employer: |
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▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
|
Attention:
Board of Directors
| IftoEmployee: |
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▇▇▇▇
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▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Any
party
by written notice to the other party given in accordance with this Section
may
change the address or the persons to whom notices or copies thereof shall be
directed.
5.6
Successors.
This
Agreement shall bind and inure to the benefit of the successors, heirs and
personal representatives of each of the parties hereto.
5.7 Governing
Law; Venue.
This
Agreement shall be governed by, and construed in accordance with; the laws
of
the State of Nevada- All parties agree that venue for any and all claims arising
from the Agreement shall be located in the state or federal courts located
in
▇▇▇▇▇ County, Nevada.
5.8
Severability.
If any
provision of this Agreement shall be adjudicated to be, in whole or in part,
invalid, ineffective or unenforceable, the remaining provisions of this
Agreement shall not be affected thereby. The invalid, ineffective and
unenforceable provision shall, without further action by the parties, be
automatically amended to effect so much of the original purpose and intent
of
the invalid, ineffective or unenforceable provision; provided, however, that
such amendment shall apply only with respect to the operation of such provision
in the particular jurisdiction with respect to which such adjudication is made.
5.9
Waivers.
Any
waiver by any party of any violation, breach, or default under any provision
of
this Agreement, by the other party shall not be construed as, or constitute,
a
continuing waiver of such provisions, or waiver of any other violation, breach
or default under any other provision of this Agreement.
5.10
Headings.
The
headings in this Agreement are solely for convenience of reference and shall
not
be given any effect in the construction or interpretation of this
Agreement.
5.11
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which together will constitute one and
the
same Agreement.
5.12
Enforcement.
In the
event that either party resorts to legal action to enforce the terms and
provisions of this Agreement, the prevailing party shall be entitled to recover
from the nonprevailing party the costs of such action so incurred, including,
without limitation, reasonable attorneys’ fees.
5.13
Legal
Representation.
Employee
acknowledges and agrees that he has
read
and
understands the terms set forth in this Agreement and has been given a
reasonable opportunity to consult with an attorney prior to execution of this
Agreement.
IN
WITNESS WHEREOF
the
parties hereto have executed this Employment Agreement as of the date first
above written.
|
/s/
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▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
Employee
By_/s/
▇▇▇▇
▇▇▇▇▇▇▇
Director
By:
/s/
Morden ▇.
▇▇▇▇▇▇▇
Director
|
By /s/
▇▇▇▇
▇▇▇▇▇▇
Director
of Compensation Committee
Approved
At Board Meeting Held on____________________________