EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (this "Agreement") is made and
entered into as of this day of , 20, to be effective as of ,
2001, by and between TFN, The Football Network, Inc., a Delaware
Corporation (the "Company") and Xxxxxxxx Xxxxxx ("Executive").
Engagement and Duties.
Upon the terms and subject to the conditions set forth in this
Agreement, the Company hereby engages and employs Executive as an
officer and Board of Director of the Company, with the title and
designation of President, Chief Executive Officer, Founder and Chairman
of the Board. Executive hereby accepts such engagement and employment.
Company further agrees that Executive shall have the sole and exclusive
right to the title "Founder" in perpetuity, throughout the universe,
which is to be exercised at Executive's own discretion.
Executive's duties and responsibilities shall be those which are
normally and customarily vested in the office of President, Chief
Executive Officer and Member Board of Directors of a corporation,
subject to the supervision, direction and control of the Board of
Directors (the "Board"). In addition, Executive's duties shall include
those duties and services for the Company and its affiliates as the
Board shall from time to time reasonably direct. Executive shall report
directly to the Board.
Executive agrees to devote his primary business time, energies, skills,
efforts and attention to his duties hereunder, and will not, without the
prior written consent of the Company, which consent will not be
unreasonably withheld, render any material services to any other
business concern.
Executive will use his best efforts and abilities faithfully and
diligently to promote the Company's business interests.
Except for routine travel incident to the business of the Company,
Executive shall perform his duties and obligations under this Agreement
principally from an office provided by the Company in Los Angeles, CA or
such other location in the State of California, as the Board may from
time to time determine.
Term of Employment.
Executive's full time employment pursuant to this Agreement shall
commence as of the 26th day of April 2001 and shall terminate on the
earliest to occur of the following:
The close of business on the date which is 30 days following receipt by
Executive of written notice of termination by the Company "without
cause;" provided, that the earliest date of such termination shall be
November 1, 2002;
The date which is four years from the date of the closing of the Major
Outside Round of Financing (as defined in the Operating Agreement of the
Company);
The death of Executive;
Delivery to Executive of written notice of termination by the Company if
Executive shall suffer a physical or mental disability which renders
Executive, in the reasonable judgment of the Board, substantially and
materially unable to perform his duties and obligations under this
Agreement for 90 days in any 12-month period; or
Delivery to Executive of written notice of termination by the Company
"for cause," only for the following reasons: (i) any act or omission
knowingly undertaken or omitted by Executive with the intent that can be
concretely proven, of causing damage to the Company, its properties,
assets or business or its stockholders, officers, directors or
employees; (ii) any act of Executive involving any fraud,
misappropriation or embezzlement; (iii) conviction of, or pleading nolo
contendere to, (A) any crime or offense involving monies or other
property of the Company; (B) any felony offense; or (C) the chronic or
habitual use of illegal drugs.
Compensation; Executive Benefit Plans.
Base Salary- The Company shall pay to Executive a base salary at an
annual rate as follows:
$8,000 (eight thousand) per month during the period commencing on April
1, 2001 and ending on the last day of the calendar month during which
the closing of at least one point seventy five million ($1.75 million)
is raised.
$10,000 (ten thousand) per month from the time the $1.75 million is
raised and ending on the last day of the calendar month during which the
closing of at least $2.5 million (hereinafter referred to as the "Seed
Money") is raised.
$12,500 (twelve thousand five hundred) per month from the time the Seed
Money is raised and ending on the last day of the calendar month during
which the closing of the Final Round is raised.
$200,000 (two hundred thousand dollars) during the period commencing on
the first day of the calendar month immediately following the month
during which the closing of the Major Outside Round of Financing occurs
and ending on the last day of the calendar month during which the
Company achieves its one year anniversary from the date of the closing
of the major round of financing; and
All other base pay raises shall be in accordance with the Company's
Business Plan.
The base salary shall be payable in installments throughout the year in
the same manner and at the same times the Company pays base salaries to
other executive officers of the Company but no less frequently than
monthly. In the event that Executive's employment is terminated pursuant
to Section II (A) (1), then Company agrees to continue to pay (i)
Executive's then-current base salary for a period of 24 consecutive
months following the effective date of such termination (ii) provide for
Executive's benefit professional out placement services of Executive's
choosing (which is reasonably acceptable to the Company) for a period of
12 consecutive months, (iii) continue to provide Executive without
charge or cost with an office for Executive's personal use until the
earlier of (a) the date upon which Executive has secured other
employment, and (b) six months from the effective date of termination,
and (iv) continue to provide Executive, for the same period as Executive
is entitled to receive base salary under clause (i) of this paragraph,
with health, disability and life insurance to the same extent that
Executive had been covered immediately prior to the effective date of
termination without charge or cost beyond what Executive paid for such
coverage prior to termination of employment.
Bonus-
In addition to the base salary to be paid to Executive hereunder, the
Company shall pay a bonus to Executive on the following schedule:
Upon the raising of $1.75 million dollars, Executive shall be
retroactively paid $2,000 for every month since the beginning of the
calendar year.
Upon the raising of the full "Seed" round of financing, Executive shall
be retroactively paid $2,500 for every month since the beginning of the
calendar year.
In addition to the base salary to be paid to Executive hereunder, the
Company shall pay a bonus to Executive (a "Bonus"), at a similar rate to
other executives following the commercial launch of the Network;
provided, it shall be a condition to the receipt of any Bonus that
Executive shall continue to be employed by the Company on the date such
Bonus payment is required to be made hereunder:
Vacation- Following the first six months of employment, executive shall
be entitled each year to vacation for a minimum of three calendar weeks,
plus such additional period or periods as the Board may approve in the
exercise of its reasonable discretion, during which time his
compensation shall be paid in full.
Sick Leave- Executive shall be entitled to sick leave and emergency
leave for a total of no more than five (5) days per year. Additional
sick leave or emergency leave over and above paid leave by the Company,
if any, shall be unpaid and shall be granted at the discretion of the
Board of Directors.
Holidays- Executive shall be entitled to all bank holidays each calendar
year. Company will notify Executive on or about the beginning of each
calendar year with respect to the holiday schedule for the coming year.
Expense Reimbursement- Executive shall be entitled to reimbursement from
the Company for the reasonable costs and expenses (not including car
rental, airline, or hotel accommodations) which he incurs in connection
with the performance of his duties and obligations under this Agreement
for a total of no more than one thousand ($1,000) per month unless
approved by the Board for executive officers.
Taxes- The Company may deduct from any compensation payable to Executive
the minimum amounts sufficient to cover applicable federal, state and/or
local income tax withholding, old-age and survivors' and other social
security payments, state disability and other insurance premiums and
payments.
Housing- Company agrees to reimburse Executive for housing of
Executive's choosing until the final round of financing has been closed
at a rental rate of no more than one thousand ($1,000) per month.
Transportation-
Automobile: Company shall reimburse Executive at a rate of no more than
five hundred ($500) per month.
Club Membership: Memberships, including Country Club affiliations,
shall be requested and approved by the board of directors.
Other Benefits. During the term of his employment hereunder, and
thereafter as otherwise provided herein, Executive shall be eligible to
participate in all operative employee benefit and welfare plans of the
Company then in effect from time to time and in respect of which all
executive officers of the Company generally are entitled to participate
("Company Executive Benefit Plans"), including, to the extent then in
effect, group life, medical, dental, disability, 401 (K) and other
insurance plans.
Change in Authority: In the event the Company is acquired, or is the
non-surviving party in a merger, or sells all or substantially all of
its assets, Company agrees to use its utmost best efforts and utilize
good faith negotiations to ensure that the transferee or surviving
company is bound by the provisions of this Agreement.
Production Rights.
Executive Generated Programming: Executive shall have the right to
personally produce or designate another to produce no more than two (2)
football related programs per year.
Credit: All credit requirements set forth herein shall be subject to
all applicable network, union and guild requirements. Executive shall
be entitled to an executive producer credit for each episode produced by
Executive. The form, size, prominence, placement and boldness of such
credit shall be mutually agreed upon. No casual or inadvertent failure
by Company to comply with the credit provision set forth in this
Paragraph VI will constitute a breach by Company of this Agreement.
Budget: The Programming Advisory Committee and Executive shall mutually
agree upon the budget, date and length of any program. Any such
agreement shall be solidified and agreed upon prior to any funds paid
for production of the project
It is agreed that the option to produce any potential program shall not
be available until the closing of the Final Round of financing is
raised.
Ownership: The results and proceeds of Executive's services hereunder
in connection with the development and production for the Production,
any pilot and/or Series, shall be deemed a work-made-for-hire
specifically ordered by Company, and Executive hereby further
acknowledges that all of the Results and Proceeds have been paid for by
Company and are the sole property of Company for any and all purposes
whatsoever. Executive hereby agrees to execute any document Company
deems in its interest to confirm the existence of the preceding and to
effectuate its purpose to convey such rights to Company.
Copyright. Company shall own and control the copyright to the Property,
Pilot(s), Series and any adaptations thereof. Any royalties shall be
paid to Executive subject to a mutually beneficial separate agreement.
Confidentiality of Proprietary Information and Material.
Industrial Property Rights. For the purpose of this Agreement,
"Industrial Property Rights" shall mean all of the Company's patents,
trademarks, trade names, inventions, copyrights, know-how or trade
secrets, now in existence or hereafter developed or acquired by the
Company or for its use, relating to any and all products which are
developed, formulated and/or manufactured by the Company.
Trade Secrets. For the purpose of this Agreement, "Trade Secrets" shall
mean any formula, pattern, device, or compilation of information which
is used in the Company's business which gives the Company an opportunity
to obtain an advantage over its competitors who do not know and/or do
not use it.
Technical Data. For the purpose of this Agreement, "Technical Data"
shall mean all information of the Company in written, graphic or
tangible form relating to any and all products or services which are
developed, formulated and/or manufactured by the Company, as such
information exists as of the date of this Agreement or is developed by
the Company during the term hereof.
Proprietary Information. For the purpose of this Agreement, "Proprietary
Information" shall mean all of the Company's Industrial Property Rights,
Trade Secrets and Technical Data. Proprietary Information shall not
include any information which (i) was lawfully in the possession of
Executive prior to Executive's employment with the Company, (ii) may be
obtained by a reasonably diligent businessperson from readily available
and public sources of information, (iii) is lawfully disclosed to
Executive after termination of Executive's employment by a third party
which does not have an obligation to the Company to keep such
information confidential, or (iv) is independently developed by
Executive after termination of Executive's employment without utilizing
any of the Company's Proprietary Information.
Agreement Not To Copy Or Use. Executive agrees, at any time during the
term of his employment and for a period of ten years thereafter, not to
copy, use or disclose (except as required by law after first notifying
the Company and giving it an opportunity to object) any Proprietary
Information without the Company's prior written permission. The Company
may withhold such permission as a matter within its sole discretion
during the term of this Agreement and thereafter.
Discoveries and Inventions.
Disclosure. Executive will promptly disclose in writing to the Company
complete information concerning each and every invention, discovery,
improvement, device, design, apparatus, practice, process, method,
product, television concepts or work of authorship, whether patentable
or not, made, developed, perfected, devised, conceived or first reduced
to practice by Executive, whether or not during regular working hours
(hereinafter referred to as "Developments"), either solely or in
collaboration with others, (a) prior to the term of this Agreement while
working for the Company, (b) during the term of this Agreement or (c)
within six months after the term of this Agreement, if relating either
directly or indirectly to the business, products, practices, techniques
or confidential information of the Company.
Assignment. Executive, to the extent that he has the legal right to do
so, hereby acknowledges that any and all Developments are the property
of the Company and hereby assigns and agrees to assign to the Company
any and all of Executive's right, title and interest in and to any and
all of such Developments; provided, however, that, in accordance with
California Labor Code Sections 2870 and 2872, the provisions of this
Section B shall not apply to any Development that the Executive
developed entirely on his own including those Developments that either:
Relate at the time of conception, founding or reduction to practice of
the Development to the Company's business, or actual or demonstrably
anticipated research or development of the Company; or
Result from any work performed by Executive, as Founder, for the
Company.
Assistance of Executive. Upon request and without further compensation
therefore, but at no expense to Executive, and whether during the term
of this Agreement or for a period of 12 consecutive months thereafter,
Executive will do all reasonable lawful acts, including, but not limited
to, the execution of papers and lawful oaths and the giving of
testimony, that may be reasonably necessary or desirable in obtaining,
sustaining, reissuing, extending and enforcing United States and foreign
Letters Patent, including, but not limited to, design patents, on any
and all Developments and for perfecting, affirming and recording the
Company's complete ownership and title thereto, subject to the proviso
in Section B hereof, and Executive will otherwise reasonably cooperate
in all proceedings and matters relating thereto.
Records. Executive will keep complete and accurate accounts, notes, data
and records of all Developments in the manner and form reasonably
requested by the Company. Such accounts, notes, data and records shall
be the property of the Company, subject to the proviso in Section B
hereof, and, upon request by the Company, Executive will promptly
surrender the same to it or, if not previously surrendered upon its
request or otherwise, Executive will surrender the same, and all copies
thereof, to the Company upon the conclusion of his employment.
Obligations, Restrictions and Limitations. Executive understands that
the Company may enter into agreements or arrangements, and that the
Company may be subject to laws and regulations, which impose
obligations, restrictions and limitations on it with respect to
proprietary information that may be acquired by it. Executive agrees
that he shall be bound by all such obligations, restrictions and
limitations, and shall take any and all further action, which may be
required to discharge such obligations and to comply with such
restrictions and limitations.
Non-solicitation Covenant.
Non-solicitation and Noninterference. During the term of this Agreement
and for a period of two years thereafter, Executive shall not (a) induce
or attempt to induce any employee of the Company to leave the employ of
the Company or in any way interfere adversely with the relationship
between any such employee and the Company, (b) directly and personally
induce or attempt to induce any employee of the Company to work for,
render services or provide advice to or supply confidential business
information or trade secrets of the Company to any third person, firm or
corporation or (c) directly and personally induce or attempt to induce
any customer, supplier, licensee, licensor or other business relation of
the Company to cease doing business with the Company or in any way
interfere with the relationship between any such customer, supplier,
licensee, licensor or other business relation and the Company.
Indirect Solicitation. Executive agrees that, during the term of this
Agreement and the period covered by Section A above, he will not,
directly or indirectly, assist or encourage any other person in carrying
out, directly or indirectly, any activity that would be prohibited by
the provisions of Section A above if such activity were carried out by
Executive, either directly or indirectly; and, in particular, Executive
agrees that he will not, directly or indirectly, induce any employee of
the Company to carry out, directly or indirectly, any such activity.
Injunctive Relief. Executive hereby recognizes, acknowledges and agrees
that in the event of any breach by Executive of any of his covenants,
agreements, duties or obligations contained in Sections VIII, IX, of
this Agreement, the Company would suffer great and irreparable harm,
injury and damage, the Company would encounter extreme difficulty in
attempting to prove the actual amount of damages suffered by the Company
as a result of such breach, and the Company would not be reasonably or
adequately compensated in damages in any action at law. Executive
therefore covenants and agrees that, in addition to any other remedy the
Company may have at law, in equity, by statute or otherwise, in the
event of any breach by Executive of any of his covenants, agreements,
duties or obligations contained in Sections VIII, IX of this Agreement,
the Company shall be entitled to seek and receive temporary, preliminary
and permanent injunctive and other equitable relief from any court of
competent jurisdiction to enforce any of the rights of the Company, or
any of the covenants, agreements, duties or obligations of Executive
hereunder, and/or otherwise to prevent the violation of any of the terms
or provisions hereof, all without the necessity of proving the amount of
any actual damage to the Company or any affiliate thereof resulting
therefrom; provided, however, that nothing contained in this Section X
shall be deemed or construed in any manner whatsoever as a waiver by the
Company of any of the rights which the Company may have against
Executive at law, in equity, by statute or otherwise arising out of, in
connection with or resulting from the breach by Executive of any of his
covenants, agreements, duties or obligations hereunder.
Miscellaneous.
Notices. All notices, requests and other communications (collectively,
"Notices") given pursuant to this Agreement shall be in writing, and
shall be delivered by personal service or by United States first class,
registered or certified mail (return receipt requested), postage
prepaid, or by recognized overnight courier addressed to the party at
the address set forth below:
If to Company:
TFN, The Football Network, Inc.
Attn: Board of Directors
000 X. Xxxxxxxxx Xx.
Xxx Xxxxxxx, XX 00000
If to Executive:
Xxxxxxxx Xxxxxx
Any Notice shall be deemed duly given when received by the addressee
thereof, provided that any Notice sent by registered or certified mail
shall be deemed to have been duly given three days from date of deposit
in the United States mails, unless sooner received. Either party may
from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this
section.
Entire Agreement. This Agreement contains the sole and entire agreement
and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions,
negotiations, commitments and understandings, whether oral or otherwise,
related to the subject matter of this Agreement are hereby merged
herein. Any party to this Agreement has relied upon no representations,
oral or otherwise, express or implied, other than those contained in
this Agreement.
Attorneys' Fees. If any action, suit or other proceeding is instituted
to remedy, prevent or obtain relief from a default in the performance by
any party of its obligations under this Agreement, the prevailing party
shall recover all of such party's costs and reasonable attorneys' fees
incurred in each and every such action, suit or other proceeding,
including any and all appeals or petitions therefrom.
Jurisdiction: The laws of the United States and the State of California,
city of Los Angeles, will govern this Agreement, any exhibits and/or
attachments without reference to rules governing choice of laws.
Arbitration: All disputes arising in connection with this Agreement
shall be finally settled by arbitration in Los Angeles, CA, in
accordance with the rules of the American Arbitration Association (the
"Rules of Arbitration"). Judgment on the award rendered by the
arbitration panel (the "Arbitration Panel") may be entered in any court
of competent jurisdiction. Any party which desires to initiate
arbitration proceedings may do so by delivering written notice to the
other party (the "Arbitration Notice") specifying (a) the nature of the
dispute or controversy to be arbitrated and (b) such other matters as
may be required by the Rules of Arbitration. The arbitrator (the
"Arbitrator"), who shall be a member of the labor panel of the American
Arbitration Association shall thereafter be selected in accordance with
the Rules of Arbitration. The costs of the arbitration shall be borne by
the party which the Arbitrator determines to be the non-prevailing party
in the arbitration. All decisions of the Arbitrator shall be final,
conclusive and binding on all parties and shall not be subject to
judicial review.
Captions. The various captions of this Agreement are for reference only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
Business Day. If the last day permissible for delivery of any Notice
under any provision of this Agreement, or for the performance of any
obligation under this Agreement, shall be other than a business day,
such last day for such Notice or performance shall be extended to the
next following business day (provided, however, under no circumstances
shall this provision be construed to extend the date of termination of
this Agreement).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
COMPANY:
In witness hereof, I have hereunto subscribed my name as Secretary of
TFN, The Football Network and do hereby certify that the foregoing
Executive Agreement was adopted by the Board of Directors and passed as
herein set forth.
COMPANY: EXECUTIVE:
By: /s/Xxxxxxx Xxxxxx By: Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Secretary
For Board of Directors-
TFN, The Football Network, Inc.
A Delaware Corporation
Date:
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