Exhibit 10.3
THE PLAYERS NETWORK
EMPLOYMENT AGREEMENT
CHIEF EXECUTIVE OFFICER, PRESIDENT AND EXECUTIVE PRODUCER
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made as of January 1,
2000, by and between ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("EMPLOYEE") and The Players
Network, a Nevada corporation ("EMPLOYER").
WHEREAS, Employee is the founder and 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.
WHEREAS, Employer desires to employ Employee as its president and
executive producer, and Employer desires to retain Employee as a member of its
board of directors, and Employee desires to accept such positions, including the
directorship subject to shareholder approval.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants set forth
below, the parties hereby agree as follows.
CONDITION PRECEDENT: The duties of both of the parties hereto are
expressly conditioned on the approval of this Agreement by a majority of the
disinterested members of the board of directors.
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, but
subject to the final two sentences of this paragraph, Employee shall be employed
as Employer's Chief Executive Officer, President and Executive Producer and
shall perform such duties as are generally applicable to an employee in such
position, including, but not limited to those duties determined by the Board of
Directors of Employer. In such capacities, Employee shall be responsible for the
day-to-day operations of Employer's business, the implementation of policies
established by the board of directors and the control of the creative direction
of Employer and maintenance of its overall image. The parties recognize that as
Employer's business grows and becomes more complicated, diverse and demanding of
executive management, Employer expects to hire additional individuals who will
assume some of the duties for which Employee is currently responsible, and will
likely give such individuals the office and title of Chief Executive Officer,
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President or Executive Producer. As and when one or more individuals are so
hired by Employer to undertake some portion or portions of Employee's current
duties, the balance of his duties and titles shall remain unaffected and his
compensation from Employer shall remain unaffected.
(B) SCHEDULE. So long as he is employed by Employer, Employee
shall serve on a substantially full-time basis and shall devote substantially
all of Employee's working time and attention as necessary to faithfully and
fully carry-out his duties; provided, however, Employee may (i) serve as a
director of other business organizations, (ii) devote time to and invest in
noncompeting 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 and provided the Board of Directors of Employer consents in
writing thereto. Employee may purchase securities in any company provided that
such purchase shall not result in his owning beneficially at any time 10 percent
or more of the equity securities of such entity engaged in a business
competitive to that of Employer. Employee shall at all times perform his duties
and obligations faithfully and diligently and to the best of Employee's ability.
(C) KEY MAN INSURANCE. Employer may for its benefit and at its
own expense insure Employer's life. Employee shall 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) SALARY. Subject to increase pursuant to the cost of living
adjustment described below, Employer shall pay to Employee an annual base salary
of One Hundred Thousand Dollars ($100,000) during the first year of the term of
this Agreement, One Hundred Twenty-Five Thousand Dollars ($125,000) during the
second year and One Hundred Fifty Thousand Dollars ($150,000) during the third
and subsequent years of the term of this Agreement (the "BASE SALARY") or such
greater amount as may be determined upon a review of Employee's performance to
be undertaken by Employer's Board of Directors (the "BOARD"), at its sole
discretion, at least once annually and which has been approved by at least
fifty-one percent (51%) of the members of the Board. Installments of Employee's
Base Salary shall be payable at least biweekly. 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 (1967=100; 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.
(B) EXECUTIVE PRODUCER ROYALTY. Employer shall pay Employee a
royalty ("Executive Producer Royalty") with respect to instructional
videoprograms, gambling news broadcasts or other programs or shows, such as PN
News, Inside the Books, Neon Buzz, Tournaments Today and Game Watch (each, a
"product") presented in any medium, which meet all three of the following
criteria:
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(i) The product is directly or indirectly supervised in all of
its development and execution by Employee as primary or co-supervisor or
overseeing executive; and
(ii) The product is licensed, sold or otherwise exploited by
entities other than Employer; and
(iii) Such other entities pay a fee, royalty, rental, purchase
price or other payment to Employer in exchange for a license in any and all
broadcast and distribution media and markets or title to the product.
If all of the foregoing criteria are met with respect to a product, Employer
shall account in writing for and pay to Employee the Executive Producer Royalty
in an amount equal to ten percent (10%) of all amounts described in clause (iii)
immediately above received by Employer during the preceding calendar quarter.
Employer shall pay to Employee the Executive Producer Royalty within twenty (20)
days following each calendar quarter notwithstanding the expiration or
termination of this Agreement. Employer shall pay the Executive Producer 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 Executive Producer Royalty has been
paid properly in accordance with the requirements of this Agreement,
notwithstanding the expiration or termination of this Agreement.
(C) BENEFITS. Employee shall be entitled to participate in all
employee benefit programs established by the Board 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 Board and the following: $500,000 term life insurance
(with beneficiary to be designated by Employee); disability insurance covering
seventy percent (70%) of Employee's monthly compensation; full medical and
dental insurance for Employee and his immediate family, automobile operating
insurance and maintenance expenses; automobile lease payments; cell phone
acquisition and operating expenses; and Young Presidents Organization dues.
(D) PERFORMANCE BONUS AND WARRANTS AGREEMENT. Concurrently
with execution of this Employment Agreement, the parties shall enter into a
Performance Bonus and Warrants Agreement.
(E) REIMBURSEMENT OF EXPENSES. Subject to such rules and
procedures which from time to time are reasonably specified by the Board,
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.
(F) SEVERANCE COMPENSATION FOR TERMINATION WITHOUT CAUSE. In
the event that Employee's employment is terminated by Employer for any reason
(other than as a result of the termination of this Agreement pursuant to
SECTIONS 3.1, 3.2 OR 3.3) (an "INVOLUNTARY TERMINATION"), Employee shall be
entitled to receive from Employer an amount equal to Employee's then-current
Base Salary during the period commencing on the effective date of an Involuntary
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Termination and ending thirty-six (36) months after the date of an Involuntary
Termination. Such amount shall be paid in equal biweekly installments over such
thirty-six-month period, with the first such payment to be made within fourteen
(14) days of the date of such termination. The Company shall continue to pay all
of Employee's automobile lease, operating, insurance and maintenance costs
during said thirty-six-month period. At the Company's expense Employee and
Employee's family also shall be entitled to continue to be covered by all
benefits generally described above and in effect immediately prior to the date
of Employee's termination, for a period of sixty (60) months thereafter. In the
event Employee is ineligible under the terms of such 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 present value of the
continuation of such insurance coverage to which Employee is entitled under this
SECTION 1.3(D).
(G) STOCK VESTING ACCELERATION. In the event Employee dies,
becomes disabled, is dismissed from Employer's employment without cause, or his
employment is terminated by him for Good Reason (defined below), then all
unvested and unexercisable stock options and warrants issued by Employer to
Employee shall then accelerate, vest and be exercisable immediately.
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 by
Employer 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 Employer's premises or
retain any of the materials described in this SECTION 2.1, except with the prior
written consent of Employer and all such materials in Employee's possession
shall be delivered promptly to Employer.
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,
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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 employ of Employer,
Employer shall pay to the 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") 100% 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. In addition, Employee's surviving spouse, if any, shall continue to be
covered by all medical, health and accident insurance, and for the same
coverage, maintained for Employee's benefit immediately prior to the date of
Employee's death, for a period of eighteen (18) months thereafter. In the event
Employee's surviving spouse is ineligible under the terms of such insurance to
continue to be so covered, the Company shall provide substantially equivalent
coverage through other sources or will provide the Employee's surviving spouse
with the lump sum payment equal to the agreed upon present value of the
continuation of such insurance coverage under this SECTION 3.1.
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 (in any case 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
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Arbitration Association and to cooperate with the arbitrator, with all costs of
arbitration paid by the Employer.
3.3 VOLUNTARY TERMINATION BY EMPLOYEE. In the event that
Employee's employment with Employer is voluntarily terminated by Employee
without Good Reason (as defined below), Employer shall have no further
obligations hereunder from and after the effective date of such termination and
shall have all other rights and remedies available under this or any other
agreement and at law or in equity. Notwithstanding the preceding sentence, in
the event that Employee's employment with Employer is voluntarily terminated by
Employee with Good Reason, Employee shall be entitled to receive his Base Salary
(at the rate in effect immediately prior to such termination) during the period
commencing on the effective date of such termination and ending thirty-six (36)
months after the date of such termination, as if Employee were still employed
hereunder during such period. Employee and his family shall also be entitled to
continue to be covered by all employee benefits generally described in Section
1.3 above and in effect immediately prior to the date of Employee's termination,
for a period of twelve (12) months thereafter. In the event Employee is
ineligible under the terms of such insurance to continue to be so covered,
Employer shall provide Employee with substantial equivalent coverage through
other sources or will provide Employee with a lump sum payment equal to the
agreed upon present value of the continuation of such insurance coverage to
which Employee is entitled under this SECTION 3.3. For purposes of this
Agreement, Good Reason shall mean any of the following which occurs subsequent
to the date of this Agreement:
(A) a substantial reduction in Employee's position,
duties, responsibilities and
status with Employer inconsistent with Employee's duties, responsibilities and
status immediately prior to a change in Employee's title or offices, or any
removal of Employee from or any failure to reelect Employee to any of such
positions, except in connection with the termination of his or her employment
for disability, retirement or cause or by Employee other than for Good Reason;
(B) a reduction by Employer in Employee's Base Salary
as in effect immediately
prior to any such reduction without Employee's consent, or Employer's failure to
increase (within 12 months of Employee's last increase in Base Salary) the
Employee's Base Salary in an amount which at least equals, on a percentage
basis, 50% of the average percentage increase (determined without regard to
Employee) in base salary for all executive employees of Employer effected in the
preceding twelve (12) months;
(C) a requirement that Employee travel on business
for Employer to an extent
materially greater than Employee's normal business travel obligations, or a
relocation of Employee to a location more than 25 miles from Employee's
residence at the date of such proposed relocation;
(D) any material breach by Employer of any provision
of this Agreement or any
other agreement with Employee;
(E) any failure by Employer to obtain the assumption
of this Agreement by any
successor or assign of Employer; or
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(F) Employee's permanent disability, which for
purposes of this Agreement shall
mean Employee's inability to perform his or her duties under this Agreement for
180 days during any nine-month period due to illness, accident or other
incapacity (as determined in good faith by a physician mutually acceptable to
Employer and Employee) or if the physician selected by Employee and Employer
examines Employee and advised Employer that it is likely that Employee will be
unable to perform such duties for 180 days during the succeeding nine-month
period.
SECTION 4. ADDITIONAL EMPLOYER COVENANTS.
4.1 INDEMNIFICATION OF EMPLOYEE. Employer shall defend and
indemnify Employee at Employer's sole expense to the full extend 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. Employer's indemnification duty shall survive
the termination or expiration of this Agreement.
4.2 RIGHT OF FIRST REFUSAL. Before Employer disposes of all or
any substantial portion of its assets (the Assets) to any third party, Employer
shall offer in writing to Employee the opportunity to purchase such assets. Said
writing shall identify the name and address of the third party or parties to
whom Employer otherwise proposes to sell the Assets, as well as the terms and
conditions of the proposed sale. Employee shall have the right to purchase the
Assets at the price and on the terms specified in said written notice during the
ninety-day period following receipt of said notice from Employer. In the event
Employee does not exercise his right within said ninety-day period (or in the
event he sooner waives such right), Employer shall have the right for a period
of thirty (30) days thereafter to dispose of only those Assets covered by the
notice, but only to the third party or parties and on the terms and conditions
specified in the notice. In the event the assets are not so disposed of by the
end of said thirty-day period, the Assets again shall become subject to the
terms of this Agreement. For purposes of this section, the term "DISPOSED"
includes, but is not limited to, sale, assignment, transfer, gift and any other
form of voluntary conveyance.
SECTION 5. MISCELLANEOUS.
5.1 AMENDMENT. This Agreement may be amended only be writing
executed by the parties hereto, which has been approved by 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,
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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: The Players Network
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Attention: Board of Directors
IF TO EMPLOYEE: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Any party by written notice to the other party given in accordance with this
SECTION 4.3 may change the address or the persons to whom notices or copies
thereof shall be directed.
5.6 SUCCESSORS AND ASSIGNMENT. This Agreement shall bind and
inure to the benefit of the successors, heirs and personal representatives of
each of the parties hereto, and may not be assigned by Employee, in whole or in
part, and any attempt to do so shall be null and void.
5.7 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of 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 of,
breach of 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 of, breach of 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.
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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.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement as of the date first above written.
THE PLAYERS NETWORK
Dated: ________________________ By:_____________________________
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Dated:_________________________ By:______________________________
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Dated:_________________________ By:______________________________
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Dated:_________________________ __________________________________
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