{"id":39819,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-employment-agreement-bam-entertainment-inc-and2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-employment-agreement-bam-entertainment-inc-and2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-employment-agreement-bam-entertainment-inc-and2.html","title":{"rendered":"Executive Employment Agreement &#8211; BAM! Entertainment Inc. and Raymond C. Musci"},"content":{"rendered":"<pre>                         EXECUTIVE EMPLOYMENT AGREEMENT\n\n\n        This Agreement, dated as of October 1,1999 (the \"Effective Date\"), is\nbetween BAM! Entertainment, Inc., a Delaware corporation, (the \"Company\") and\nRaymond C. Musci, an individual (\"Employee\").\n\n        1. Term\n\n               a. Basic Term: The Company shall employ Employee for the period\ncommencing on the Effective Date and ending upon the earlier of (i) two (2)\nyear(s) from the Effective Date (the \"Term Date\"), as extended under Section\n1(b); or (ii) the date upon which the employment is terminated in accordance\nwith Section 4 or 5.\n\n               b. Renewal: Employee's employment will be renewed automatically\nfor an additional one (1) year period (without any action by either party) on\nthe Term Date and on each anniversary thereof, unless one party gives to the\nother written notice sixty (60) days in advance of the beginning of any one-year\nrenewal period that the employment is to be terminated. Either party may elect\nnot to renew this Agreement with or without cause, in which case Employee shall\nnot be entitled to any Severance. Nothing stated in this Agreement or\nrepresented orally or in writing to either party shall create an obligation to\nrenew this Agreement.\n\n        2. Position and Responsibilities\n\n               a. Position: Employee is employed by the Company to render\nservices to the Company in the position of President &amp; Chief Operating Officer.\nEmployee shall perform such duties and responsibilities as are normally related\nto such position in accordance with the standards of the industry and any\nadditional duties now or hereafter assigned to Employee by the Board of\nDirectors. Employee shall abide by the Company's rules, regulations, and\npractices as they may from time-to-time be adopted or modified.\n\n               b. Other Activities: Except upon the prior written consent of the\nCompany, Employee will not, during the term of this Agreement, (i) accept any\nother employment, or (ii) engage, directly or indirectly, in any other business\nactivity (whether or not pursued for pecuniary advantage) that might interfere\nwith Employee's duties and responsibilities hereunder or create a conflict of\ninterest with the Company.\n\n               c. No Conflict. Employee represents and warrants that Employee's\nexecution of this Agreement, his or her employment with the Company, and the\nperformance of his or her proposed duties under this Agreement shall not violate\nany obligations Employee may have to any other employer, person or entity,\nincluding any obligations with respect to proprietary or confidential\ninformation of any other person or entity.\n\n        3. Compensation and Benefits\n\n               a. Base Salary: In consideration of the services to be rendered\nunder this Agreement, the Company shall pay Employee a salary at the rate of\n$225,000 Dollars per year (\"Base Salary\"). The Base Salary shall be paid in\naccordance with the Company's regularly \n\n\n                                       1\n\n\n   2\nestablished payroll practices. Employee's Base Salary will be reviewed at least\nannually in accordance with the Company's established procedures for adjusting\nsalaries for similarly situated employees and may be increased in the sole\ndiscretion of the Company's Compensation Committee. The Base Salary may not be\ndecreased, except upon a mutual written agreement between the parties.\n\n               b. Bonus. Employee shall be eligible for any bonus program or\nplan that is established by the Company for similarly situated employees. The\nCompany's Compensation Committee, in its sole discretion, may establish a bonus\nprogram or plan for Employee.\n\n               c. Stock and Stock Options: Employee currently owns Common Stock\nand\/or Preferred Stock in the Company. The Company's Compensation Committee, in\nits sole discretion, may grant Employee one or more stock options or other\nequity rights.\n\n               d. Benefits: The Company will provide Employee with medical,\ndental, eye-care, disability and life insurance benefits in accordance with the\nbenefit plans established by the Company for similarly-situated executives (as\nmay be amended from time to time in the Company's sole discretion) and will pay\nall premiums for coverage of Employee and his family. The Company shall also\nprovide Employee with at least five weeks of paid vacation leave annually, which\nshall accrue monthly (i.e., 2 1\/12th days shall accrue each month) and shall be\ngoverned by the Company's regular policies and practices regarding vacation\nleave (as may be amended from time to time in the Company's sole discretion).\nEmployee shall also be eligible to participate in any additional benefits made\ngenerally available by the Company to similarly-situated employees, in\naccordance with the benefit plans established by the Company, which may be\namended or terminated at any time in the Company's sole discretion.\n\n               e. Expenses: The Company shall reimburse Employee for all\nreasonable business expenses incurred in the performance of his or her duties\nhereunder in accordance with the Company's expense reimbursement guidelines.\n\n               f. Indemnification. The Company agrees to defend and indemnify\nEmployee against any liability that Employee incurs within the scope of his\nemployment with the Company to fullest extent permitted by the Company's\narticles and by-laws and Delaware corporation's law. The Company agrees to\ndefend and indemnify Employee and hold Employee harmless against any liability\ncaused by all personal guarantees or other personal obligations that Employee\nmade during his employment with respect to any debts of the Company.\n\n        4. Terminations By Company\n\n               a. At-Will Termination By Company. The Company may terminate\nEmployee's employment with the Company at any time, without any advance notice,\nfor any reason, including no reason at all, notwithstanding anything to the\ncontrary contained in or arising from any statements, policies, or practices of\nthe Company relating to the employment, discipline, or termination of its\nemployees, subject to any severance payment required by Section 4(b).\nThereafter, all obligations of the Company under this Agreement shall cease,\nexcept as provided in Section 6.\n\n\n                                       2\n\n\n   3\n               b. Severance: Except in situations where Employee's employment is\nterminated For Cause or By Disability (as defined below), in the event that the\nCompany terminates Employee's employment at any time, Employee will be eligible\nto receive the following: (i) an amount equal to twenty-four (24) months of\nEmployee's then-current Base Salary (\"Severance\") payable as follows: 50% of the\nSeverance shall be paid as a lump sum within a reasonable period following the\ntermination date (but not more than sixty (60) days unless agreed by Employee)\nand 50% of the Severance will be paid as salary continuation for twelve (12)\nmonths following the termination date; and (ii) reimbursement for any COBRA\npayments made by Employee for COBRA coverage during the twelve (12) months\nfollowing the termination date. Employee shall not be entitled to any severance\npayments or benefit continuation if Employee's employment is terminated For\nCause or By Disability (as defined in below) of if Employee's employment is\nterminated by Employee for any reason (except as provided in Section 5 below).\n\n               c. Termination For Cause: For purposes of this Agreement, \"Cause\"\nshall mean: (i) Employee commits a crime involving dishonesty, breach of trust,\nor physical harm to any person; (ii) Employee willfully engages in conduct that\nis in bad faith and materially injurious to the Company, including but not\nlimited to, misappropriation of trade secrets, fraud or embezzlement; (iii)\nEmployee commits a material breach of this Agreement, which breach is not cured\nwithin twenty (20) days after written notice to Employee from the Company; (iv)\nEmployee willfully fails to implement or follow a reasonable and lawful policy\nor directive of the Company, which breach is not cured within twenty (20) days\nafter written notice to Employee from the Company; or (v) Employee engages in a\npattern of failure to perform job duties diligently and professionally, which\npattern is not cured within twenty (20) days after written notice to Employee\nfrom the Company. Prior to the date of any termination for Cause, the Company's\nBoard of Directors shall meet and the Employee shall have an opportunity to\npresent to the Board any information relevant to the event constituting Cause,\nunless waived by Employee. The Company may terminate Employee's employment For\nCause at any time, without any advance notice. The Company shall pay to Employee\nall compensation to which Employee is entitled up through the date of\ntermination, and thereafter, all of the Company's obligations under this\nAgreement shall cease, except as provided in Section 6.\n\n               d. By Disability: If Employee becomes eligible for the Company's\nlong term disability benefits or if, in the reasonable opinion of the Company's\nBoard of Directors, Employee shall be unable to carry out the responsibilities\nand functions of the position held by Employee by reason of any physical or\nmental impairment for more than ninety (90) consecutive days or more than one\nhundred and twenty (120) days in any twelve-month period, then, to the extent\npermitted by law, the Company may terminate Employee's employment. The Company\nshall pay to Employee all compensation to which Employee is entitled up through\nthe date of termination, and thereafter, all of the Company's obligations under\nthis Agreement shall cease, except as provided in Section 6. Nothing in this\nSection shall affect Employee's rights under any disability plan in which he or\nshe is a participant.\n\n        5. Termination By Employee\n\n               a. At-Will Termination By Employee. Employee may terminate\nhis\/her employment with the Company at any time for any reason, including no\nreason at all, upon sixty \n\n\n                                       3\n\n\n   4\n(60) days advance written notice. The Company shall have the option, in its sole\ndiscretion, to make Employee's termination effective at any time prior to the\nend of such notice period as long as the Company provides Employee with all\ncompensation to which he is entitled up through the last day of the sixty (60)\nday notice period. Thereafter, all obligations of the Company under this\nAgreement shall cease, except as provided in Section 6.\n\n               b. By Death: Employee's employment shall terminate automatically\nupon his or her death. The Company shall pay to Employee's beneficiaries or\nestate, as appropriate, any compensation then due and owing. Thereafter, all\nobligations of the Company under this Agreement shall cease, except as provided\nin Section 6. Nothing in this Section shall affect any entitlement of Employee's\nheirs to the benefits of any life insurance plan or other applicable benefits.\n\n               c. Termination for Good Reason. Employee's termination shall be\nfor \"Good Reason\" if Employee provides written notice to the Company of the Good\nReason within six (6) months of the event constituting Good Reason and provides\nthe Company with a period of twenty (20) days to cure the Good Reason and the\nCompany fails to cure the Good Reason within that period. For purposes of this\nAgreement, \"Good Reason\" shall mean any of the following events if the event is\neffected by the Company without Employee's consent : (i) a change in Employee's\nposition with employer which materially reduces Executive's level of\nresponsibility, except for any reduction for Cause (as defined above) or any\nreduction following a Change in Control (as defined below) caused by the\ntransition of the Company into a new company or a division of a new company;\n(ii) a material reduction in Employee's Base Salary, except for reductions that\nare comparable to reductions generally applicable to senior executives of the\nCompany; or (iii) a relocation of Employee's principal place of employment by\nmore than fifty (50) miles. Employee may terminate his\/her employment at any\ntime for Good Reason, in which case Employee will be eligible to receive the\nSeverance and benefit continuation provided by Section 4(b) above. Thereafter,\nall obligations of the Company under this Agreement shall cease, except as\nprovided in Section 6.\n\n               d. Change in Control. For purposes of this Agreement, \"Change of\nControl\" shall mean a change in ownership or control of the Company effected\nthrough a merger, consolidation or acquisition by any person or related group of\npersons (other than an acquisition by the Company or by a Company-sponsored\nemployee benefit plan or by a person that directly or indirectly controls, is\ncontrolled by, or is under common control with, the Company) of beneficial\nownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities\npossessing more than fifty percent (50%) of the total combined voting power of\nthe Company's outstanding securities.\n\n        6. Termination Obligations\n\n\n               a. Employee agrees that all property, including, without\nlimitation, all equipment, tangible proprietary information, documents, records,\nnotes, contracts, and computer-generated materials provided to or prepared by\nEmployee incident to his or her employment belong to the Company and shall be\npromptly returned to the Company upon termination of Employee's employment.\n\n\n                                       4\n\n\n   5\n               b. Upon termination of Employee's employment, Employee shall be\ndeemed to have resigned from all offices and directorships then held with the\nCompany. Following any termination of employment, Employee shall cooperate with\nthe Company in the winding up or transferring to other employees of any pending\nwork and shall also cooperate with the Company in the defense of any action\nbrought by any third party against the Company that relates to Employee's\nemployment by the Company.\n\n               c. Employee agrees that following termination of his or her\nemployment, Employee shall not access or use any of the Company's computer\nsystems, e-mail systems, voicemail systems, intranet system or other system,\nexcept as authorized by the Company in writing.\n\n               d. The Company agrees that immediately following termination of\nEmployee's employment, the Company will take all steps reasonably necessary to\nrelease Employee from all personal guarantees or other personal obligations that\nEmployee made with respect to any debts of the Company.\n\n               e. The Company and Employee agree that their obligations under\nthis Section as well as Sections 3(f), 7 (including Exhibit A) and 8 shall\nsurvive the termination of employment and the expiration of this Agreement.\n\n        7. Inventions and Proprietary Information\n\n\n               a. Employee agrees to execute and be bound by the terms of the\nCompany's Proprietary Information and Inventions Agreement, which is attached as\nExhibit A.\n\n               b. Employee acknowledges that because of his\/her position in the\nCompany, Employee will have access intellectual property and confidential\ninformation. During the term of his or her employment (plus any period in which\nthe Company is paying the Employee Severance) and for one (1) year thereafter,\nEmployee shall not, for Employee or any third party, directly or indirectly, (i)\ninterfere with any business of any kind in which the Company (or any affiliate)\nis engaged, including, without limitation, diverting or attempting to divert any\nof its suppliers or customers, or (ii) solicit, induce, recruit or encourage any\nperson employed by the Company to leave their employment.\n\n\n        8. Dispute Resolution\n\n\n               a. The parties agree that any suit, action, or proceeding between\nEmployee (and his or her attorneys, successors, and assigns) and the Company\n(and its affiliates, shareholders, directors, officers, employees, members,\nagents, successors, attorneys, and assigns) relating in any manner whatsoever to\nEmployee's employment or termination that employment shall be brought in either\nthe United States District Court for the Northern District of California or in a\nCalifornia state court in the County of Santa Clara and that the parties shall\nsubmit to the jurisdiction of such court. The parties irrevocably waive, to the\nfullest extent permitted by law, any objection the party may have to the laying\nof venue for any such suit, action or proceeding \n\n\n                                       5\n\n\n   6\nbrought in such court. If any one or more provisions of this Section shall for\nany reason be held invalid or unenforceable, it is the specific intent of the\nparties that such provisions shall be modified to the minimum extent necessary\nto make it or its application valid and enforceable.\n\n               b. Employee acknowledges that he\/she is obligated under this\nAgreement to render services of a special, unique, unusual, extraordinary and\nintellectual character, thereby giving this Agreement peculiar value so that the\nloss thereof cannot be reasonably or adequately compensated in damages in an\naction at law. Accordingly, in addition to other remedies provided by law, the\nCompany shall have the right during the term of this Agreement to compel\nspecific performance by the Employee.\n\n        9. Entire Agreement\n\n        This Agreement is intended to be the final, complete, and exclusive\nstatement of the terms of Employee's employment by the Company and may not be\ncontradicted by evidence of any prior or contemporaneous statements or\nagreements, except for agreements specifically referenced herein (including the\nCompany's Proprietary Information and Inventions Agreement, attached as Exhibit\nA, and any agreements related to the stock currently held by Employee).\n\n        10. Amendments; Waivers\n\n        This Agreement may not be amended except by a writing signed by Employee\nand by a duly authorized representative of the Company other than Employee.\nFailure to exercise any right under this Agreement shall not constitute a waiver\nof such right.\n\n        11. Assignment\n\n        Employee agrees that Employee will not assign any rights or obligations\nunder this Agreement. Nothing in this Agreement shall prevent the consolidation,\nmerger or sale of the Company or a sale of all or substantially all of its\nassets.\n\n        12. Severability\n\n        If any provision of this Agreement shall be held by a court or\narbitrator to be invalid, unenforceable, or void, such provision shall be\nenforced to fullest extent permitted by law, and the remainder of this Agreement\nshall remain in full force and effect. In the event that the time period or\nscope of any provision is declared by a court or arbitrator of competent\njurisdiction to exceed the maximum time period or scope that such court or\narbitrator deems enforceable, then such court or arbitrator shall reduce the\ntime period or scope to the maximum time period or scope permitted by law.\n\n        13. Taxes\n\n        All amounts paid under this Agreement (including, without limitation,\nBase Salary and Severance) shall be paid less all applicable state and federal\ntax withholdings. To the extent Employee is or may be subject to one or more\nforeign tax obligations, the Company agrees to reasonably cooperate with\nEmployee to maximize Employee's after tax income.\n\n\n                                       6\n\n\n   7\n        14. Governing Law\n\n        This Agreement shall be governed by and construed in accordance with the\nlaws of the State of California.\n\n        15. Interpretation\n\n        This Agreement shall be construed as a whole, according to its fair\nmeaning, and not in favor of or against any party. Captions are used for\nreference purposes only and should be ignored in the interpretation of the\nAgreement.\n\n        16. Binding Agreement\n\n        Each party represents and warrants to the other that the person(s)\nsigning this Agreement below has authority to bind the party to this Agreement\nand that this Agreement will legally bind both the Company and Employee. This\nAgreement will be binding upon and benefit the parties and their heirs,\nadministrators, executors, successors and permitted assigns. To the extent that\nthe practices, policies, or procedures of the Company, now or in the future, are\ninconsistent with the terms of this Agreement, the provisions of this Agreement\nshall control. Any subsequent change in Employee's duties or compensation will\nnot affect the validity or scope of the remainder of this Agreement.\n\n        17. Employee Acknowledgment\n\n        Employee acknowledges Employee has had the opportunity to consult legal\ncounsel concerning this Agreement, that Employee has read and understands the\nAgreement, that Employee is fully aware of its legal effect, and that Employee\nhas entered into it freely based on his or her own judgment and not on any\nrepresentations or promises other than those contained in this Agreement.\n\n        18. Date of Agreement\n\n        The parties have duly executed this Agreement as of the date first\nwritten above.\n\n\n\n\n    BAM! Entertainment, Inc.,\n    a Delaware corporation:                 EMPLOYEE:\n\n\n\n\n    By: \/s\/ RAYMOND C. MUSCI                \/s\/ RAYMOND C. MUSCI\n        ---------------------------------   --------------------------------\n        Name:  Raymond C. Musci             Raymond C. Musci\n        Title: President\n\n\n\n\n                                       7\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6843],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-39819","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bam-entertainment-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39819","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39819"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39819"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39819"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39819"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}