EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is made and entered into this 17th day of September, 2019, by and between NTN Buzztime, Inc., a Delaware corporation
(the “Company”), and Sandra Gurrola, an individual (the “Executive”).
RECITALS
THE
PARTIES ENTER THIS AGREEMENT on the basis of the following facts, understandings and intentions:
A.
The Executive commenced employment with the Company as of November 4, 2009.
B.
The Company desires that the Executive continue to be employed by the Company to carry out the duties and responsibilities
described below, all on the terms and conditions set forth in this Agreement, effective as of the date set forth in the first
paragraph (the “Effective Date”).
C.
The Executive desires to continue employment on the terms and conditions set forth in this Agreement.
D.
The Nominating and Corporate Governance/Compensation Committee (the “Committee”) of the Board of Directors
of the Company has determined and approved the terms of Executive’s continued employment on the terms and conditions set
forth in this Agreement.
E.
This Agreement shall govern the employment relationship between the Executive and the Company from and after the Effective
Date and supersedes and negates all previous agreements with respect to such relationship. Notwithstanding the foregoing, all
indemnification agreements, restricted stock agreements, stock option agreements and agreements for equity-based benefits executed
prior to the Effective Date shall not be deemed amended or revised by this Agreement, except as expressly amended or revised under
the terms of this Agreement.
NOW,
THEREFORE, in consideration of the above recitals incorporated herein and the mutual covenants and promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties
agree as follows:
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1.1
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Retention;
Authorization to Work in the United States. Subject to the terms and conditions expressly set forth in this Agreement,
the Company does hereby agree to continue the employment of the Executive and the Executive does hereby accept and agree to
this engagement and employment. Executive’s employment with the Company is “at-will” and either the Company
or Executive may terminate his employment with the Company at any time for any or no reason, subject to the terms and conditions
set forth in this Agreement. The period of time during which Executive remains employed by the Company is referred to as the
“Period of Employment.”
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1.2
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Duties.
During the Period of Employment, the Executive shall serve the Company as its Senior Vice-President of Finance and Chief Accounting
Officer (the “SVP”) and shall have the powers, duties and obligations of management typically vested in
the office of Senior Vice-President of Finance and Chief Accounting Officer of a corporation, subject to the directives of
the Company’s Board of Directors (the “Board”) and to the corporate policies of the Company as they
are in effect and as amended from time to time throughout the Period of Employment (including, without limitation, the Company’s
business conduct and ethics policies). Specifically, the SVP will work closely with the Board, the CEO and senior management
to manage administrative, financial and risk management operations of the Company, including the financial and operational
strategy and the metrics tied to that strategy, as well as the ongoing monitoring of the controls designed to preserve company
assets and report accurate financial results. The Executive will assist in the development of Company policies and objectives
in accordance with Board directives to achieve sustainable and cumulative growth over time. The Executive, in conjunction
with the CEO, will establish responsibilities and procedures for attaining objectives and reviews of operations and financial
statements to evaluate achievement of those objectives. Moreover, the Executive shall be responsible for overseeing all aspects
of the Company’s accounting functions, ensuring its financial statements fairly represent the operations of the Company
and that such financial statements are prepared in accordance with accounting principles generally accepted in the United
States. During the Period of Employment, the Executive shall report to the CEO.
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1.3
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No
Other Employment. During the Period of Employment, the Executive shall both (i) devote substantially all of the Executive’s
business time, energy and skill to the performance of the Executive’s duties for the Company, and (ii) hold no other
employment. The Company shall have the right to request the Executive to resign from any board or similar body on which she
may then serve if the Board reasonably determines that the Executive’s business related to such service is then in competition
or conflicts with any business of the Company or any of its affiliates, successors or assigns. Nothing in this Section 1.3
shall be construed as preventing Executive from engaging in the investment of his personal assets.
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1.4
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No
Breach of Contract. The Executive hereby represents to the Company that: (i) the execution and delivery of this Agreement
by the Executive and the Company and the performance by the Executive of the Executive’s duties hereunder shall not
constitute a breach of, or otherwise contravene, the terms of any other agreement or policy to which the Executive is a party
or otherwise bound; (ii) the Executive has no information (including, without limitation, confidential information and trade
secrets) relating to any other person or entity which would prevent, or be violated by, the Executive entering into this Agreement
or carrying out her duties hereunder; and (iii) except as set forth on Exhibit A hereto, the Executive is not bound
by any confidentiality, trade secret or similar agreement other than this Agreement and the Confidentiality and Work for Hire
Agreement entered into by the Executive as of November 4, 2009 and which is attached hereto as Exhibit B (the “Confidentiality
and Work for Hire Agreement”) with any other person or entity.
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1.5
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Location.
The Executive acknowledges that the Company’s principal executive offices are currently located in Carlsbad, California.
The Executive agrees that she will work from the Company’s principal executive offices. The Executive acknowledges that
he may be required to travel from time to time in the course of performing his duties for the Company.
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2.1
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Base
Salary. The Executive’s base salary (the “Base Salary”) shall be paid in accordance with
the Company’s regular payroll practices in effect from time to time, but not less frequently than in monthly installments.
The Executive’s Base Salary shall be at an annualized rate of One Hundred Ninety Thousand Dollars ($190,000).
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2.2
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Incentive
Bonus. Prior to the Effective Date and at all times during the Period of Employment, the Executive was, and shall
be, eligible to participate in the NTN Buzztime, Inc. Executive Incentive Plan for Eligible Employees for fiscal year 2019.
The Board and its nominating and corporate governance/compensation committee has determined that as of the Effective Date
of this Agreement, the Executive’s Target Payout shall be in the amount of Twenty Percent (20%) of Executive’s
Base Salary. Prior to the Effective Date, the Target Payout shall remain Ten Percent (10%) of the Executive’s Base Salary.
This incentive payment shall be prorated to account for the increase in the Executive’s Target Payout rate and calculated
from the Executive’s base salary compensation as of December 31, 2019.
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The
Incentive Bonus, if any, will be paid to the Executive within thirty (30) days after receipt of the independent auditor’s
report on the Company’s annual financial statements for the year in question; provided that the Incentive Bonus will
not be deemed earned and will not be paid to the Executive unless the Executive is employed by the Company on such payment
date. Payment of the Incentive Bonus, if any, will be subject to withholdings in accordance with the Company’s standard
payroll procedures.
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In
lieu of the Incentive Bonus, if the Company’s CEO and CFO and the nominating and corporate governance/compensation committee
of the Board agree, the Executive shall instead be eligible to receive a spot bonus in an amount to be determined by the Board
(or its nominating and corporate governance/compensation committee) in its sole discretion.
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2.3
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Stock
Units and Stock Option Grants. Prior to the Effective Date and during Executive’s tenure as an employee of the
Company, Company has granted the Executive stock incentive benefits in the form of restricted stock units and stock options
pursuant to approved Company incentive plans. Except as set forth in section 2.4 below, nothing in this Agreement shall be
deemed to amend or otherwise alter the terms and conditions of any of those incentive plans and related agreements, including
but not limited to the Amended 2010 Performance Incentive Plan and any Stock Unit Agreement and Stock Option Agreements entered
into between the Company and the Executive.
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2.4
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Change
in Control Incentive. In the event of a Change in Control (as defined in Section 4.4), and provided that the Executive
is employed by the Company through the effective date of the Change in Control, then 100% of the then unvested portion of
the stock units grant and of all stock options granted to the Executive prior to the date hereof that are then outstanding
will vest and, if applicable, become exercisable as of immediately before such effective date.
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3.1
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Retirement,
Welfare and Fringe Benefits. During the Period of Employment, the Executive shall be entitled to participate in all
employee pension and welfare benefit plans and programs, and fringe benefit plans and programs, made available by the Company
to the Company’s employees generally, in accordance with the eligibility and participation provisions of such plans
and as such plans or programs may be in effect from time to time.
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3.2
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Reimbursement
of Business Expenses. The Company will reimburse Executive for all reasonable business expenses the Executive incurs
during the Period of Employment in the course and scope of the Executive’s duties, subject to the Company’s expense
reimbursement policies in effect from time to time. Executive will be required to provide substantiation of all of such expenses
on Company approved expense report forms in accordance with Company policies. These payments may be made as direct payments
of the Executive’s invoices or bills or by reimbursement to the Executive of costs that are incurred. The Executive
will be responsible for all income and employment taxes due on such payments; the Company will not provide a gross-up payment
to cover such tax liabilities.
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3.3
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Paid
Time Off. During the Period of Employment, the Executive shall be permitted time off in accordance with the Company’s
PTO policies in effect from time to time. The Executive shall also be entitled to all other holiday and leave pay generally
available to other executives of the Company.
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4.1
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Termination
of Employment. The Executive’s employment by the Company may be terminated either by the Company or by Executive
at any time for any or no reason and with or without Cause (in any case, the date that the Executive’s employment with
the Company terminates and which constitutes a “separation from service” within the meaning of Section 409A of
the Code is referred to as the “Separation Date”).
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4.2
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Benefits
Upon Termination. If the Executive’s employment with the Company is terminated for any reason by the Company
or by the Executive, the Company shall have no further obligation to make or provide to the Executive, and the Executive shall
have no further right to receive or obtain from the Company, any payments or benefits except as follows:
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(a)
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The
Company shall pay Executive (or in the event of her death, the Executive’s estate) any Accrued Obligations (as defined
in Section 4.4) within Ten (10) days following the Separation Date;
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(b)
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In
addition to the Accrued Obligations, if the Executive’s employment with the Company is terminated by the Company without
Cause or by the Executive for Good Reason, subject to tax withholding and other authorized deductions and subject to the requirements
of Section 4.3, the Company shall: (i) pay the Executive as severance pay an amount equal to six (6) months of the Executive’s
Base Salary rate in effect on the Separation Date, which shall be payable in one lump sum; and (ii) provided that the Executive
timely elects continued insurance coverage pursuant to COBRA, reimburse the Executive for a period of six (6) months an amount
equal to the amount of the COBRA premiums actually paid by the Executive each such month. The first installment of any severance
pay payable under this Section 4.2(b) shall commence after the Executive executes the General Release and it has become effective
in accordance with its terms and is not revoked.
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(c)
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Notwithstanding
the foregoing provisions of this Section 4.2, if the Executive breaches his obligations under the Confidentiality and Work
for Hire Agreement and/or Section 6, 7 or 8 of this Agreement at any time, from and after the date of such breach, the Executive
will no longer be entitled to, and the Company will no longer be obligated to pay, any remaining unpaid portion of any benefits
provided in Section 4.2(b).
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The
foregoing provisions of this Section 4.2 shall not affect: (i) the Executive’s receipt of benefits otherwise due terminated
employees under group insurance coverage consistent with the terms of the applicable Company welfare benefit plan; (ii) the
Executive’s rights under COBRA to continue participation in medical, dental, hospitalization and life insurance coverage;
or (iii) the Executive’s receipt of benefits otherwise due in accordance with the terms of the Company’s 401(k)
plan (if any). In no event shall the Company’s obligations to the Executive exceed the sum of the Accrued Obligations,
the benefits provided in Section 4.2(b), if applicable, and the benefits contemplated by this paragraph, regardless of the
manner of the Executive’s termination of employment.
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4.3
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Release;
Exclusive Remedy.
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(a)
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This
Section 4.3 shall apply notwithstanding anything else contained in this Agreement or any stock option, restricted stock or
other equity-based award agreement to the contrary. Notwithstanding any provision in this Agreement to the contrary, as a
condition precedent to any Company obligation to the Executive pursuant to Section 4.2(b), or any agreement or obligation
to accelerate vesting of any equity-based award in connection with the termination of the Executive’s employment, the
Executive shall (i) upon or promptly following his Separation Date, sign and not revoke a general release agreement in a form
prescribed by the Company (the “General Release”), and provided further that such general release agreement
is executed and becomes effective no later than forty-five (45) days following the Executive’s Separation Date and (ii)
at the Board’s request, provide the Company with a written resignation from the Board and all of its committees. The
Company shall have no obligation to make any payment to the Executive pursuant to Section 4.2(b) unless and until the general
release agreement contemplated by this Section 4.3 becomes irrevocable by the Executive in accordance with all applicable
laws, rules and regulations and, at the Board’s discretion, the Executive shall have tendered the written resignation
from the Board and its committees as contemplated above.
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(b)
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The
Executive agrees that the General Release will include a complete release of all known and unknown claims pursuant to California
Civil Code Section 1542 and will require that the Executive acknowledge, as a condition to the payment of any benefits under
Section 4.2(b), that the payments contemplated by Section 4.2 shall constitute the exclusive and sole remedy for any termination
of his employment, and the Executive will be required to covenant, as a condition to receiving any such payment, not to assert
or pursue any other remedies, at law or in equity, with respect to any termination of employment. The Company and Executive
acknowledge and agree that there is no duty of the Executive to mitigate damages under this Agreement. All amounts paid to
the Executive pursuant to Section 4.2 shall be paid without regard to whether the Executive has taken or takes actions to
mitigate damages.
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4.4
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Certain
Defined Terms.
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(a)
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As
used herein, “Accrued Obligations” means:
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(i)
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any
Base Salary that had accrued but had not been paid (including accrued and unpaid personal time off) on or before the Separation
Date; and
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(ii)
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any
reimbursement due to the Executive pursuant to Section 3.2 for expenses incurred by the Executive on or before the Separation
Date.
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(b)
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As
used herein, “Cause” shall mean, as reasonably determined by the Board (excluding the Executive, if he
is then a member of the Board), (i) any act of personal dishonesty taken by the Executive in connection with his responsibilities
as an employee of the Company which is intended to result in substantial personal enrichment of the Executive and is reasonably
likely to result in material harm to the Company, (ii) the Executive’s conviction of a felony which the Board reasonably
believes has had or will have a material detrimental effect on the Company’s reputation or business, (iii) a willful
act by the Executive which constitutes misconduct and is materially injurious to the Company, (iv) continued willful violations
by the Executive of the Executive’s obligations to the Company after there has been delivered to the Executive a written
demand for performance from the Company which describes the basis for the Company’s belief that the Executive has willfully
violated his obligations to the Company.
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(c)
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As
used herein, “Change in Control” has the meaning given to such term in the NTN Buzztime, Inc. 2010 Performance
Incentive Plan.
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(d)
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As
used herein, “Good Reason” shall mean, as reasonably determined by the Board (excluding the Executive,
if he is then a member of the Board), (i) a change in the location of the Executive’s place of employment or the principal
offices of the Company, in each case, as of the Effective Date resulting in an increased commuting distance of more than thirty
(30) miles, (ii) a reduction in the amount of the Base Salary by 10% or more, (iii) a reduction in the percentage of the Executive’s
target potential Incentive Bonus amount from the percentage in effect for the immediately preceding year or (iv) a change
in the Executive’s position with the Company which materially reduces his duties and responsibilities; provided and
only if such change, reduction or relocation is effected by the Company without the Executive’s consent. Notwithstanding
the foregoing, a termination shall not be for Good Reason unless (A) the Executive provides written notice to the Company
of his intent to terminate for Good Reason within thirty (30) days following the first occurrence of the circumstance that
he believes constitute(s) Good Reason, which notice shall describe such circumstance, (B) the Company does not cure such circumstance
within twenty (20) days following its receipt of such notice, and (C) the Executive voluntarily terminates his employment
with the Company within thirty (30) days following the end of the twenty (20) day cure period.
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4.5
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Limitation
on Benefits.
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(a)
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Notwithstanding
anything contained in this Agreement to the contrary, to the extent that the payments and benefits provided under this Agreement
and benefits provided to, or for the benefit of, the Executive under any other Company plan or agreement (such payments or
benefits are collectively referred to as the “Benefits”) would be subject to the excise tax (the “Excise
Tax”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”),
the Benefits shall be reduced (but not below zero) if and to the extent that a reduction in the Benefits would result in the
Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and
the Excise Tax), than if the Executive received all of the Benefits (such reduced amount if referred to hereinafter as the
“Limited Benefit Amount”). Unless the Executive shall have given prior written notice specifying a different
order to the Company to effectuate the Limited Benefit Amount, the Company shall reduce or eliminate the Benefits by first
reducing or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash
payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from
the Determination (as hereinafter defined). Any notice given by the Executive pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements
to any benefits or compensation.
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(b)
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A
determination as to whether the Benefits shall be reduced to the Limited Benefit Amount pursuant to this Agreement and the
amount of such Limited Benefit Amount shall be made by the Company’s independent public accountants or another certified
public accounting firm of national reputation designated by the Company (the “Accounting Firm”) at the
Company’s expense. The Accounting Firm shall provide its determination (the “Determination”), together
with detailed supporting calculations and documentation to the Company and the Executive within five (5) days of the date
of termination of the Executive’s employment, if applicable, or such other time as requested by the Company or the Executive
(provided the Executive reasonably believes that any of the Benefits may be subject to the Excise Tax), and if the Accounting
Firm determines that no Excise Tax is payable by the Executive with respect to any Benefits, it shall furnish the Executive
with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such Benefits.
Unless the Executive provides written notice to the Company within ten (10) days of the delivery of the Determination to the
Executive that she disputes such Determination, the Determination shall be binding, final and conclusive upon the Company
and the Executive.
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5.
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Proprietary
Information; Inventions and Developments. The Executive acknowledges having entered into the Confidentiality and Work
for Hire Agreement, that she has abided by and not breached, and intends to continue to abide by and not breach, the terms,
conditions and restrictions contained in it, and she hereby reaffirms the terms, conditions and restrictions and that as it
relates to her, it remains in full force and effect.
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6.
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Confidentiality.
The Executive hereby agrees that the Executive shall not at any time (whether during or after the Executive’s employment
with the Company), directly or indirectly, other than in the course of the Executive’s duties hereunder, disclose or
make available to any person, firm, corporation, association or other entity for any reason or purpose whatsoever, any Confidential
Information (as defined below); provided, however, that this Section 6 shall not apply when (i) disclosure is required by
law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent
jurisdiction to order the Executive to disclose or make available such information (provided, however, that the Executive
shall promptly notify the Company in writing upon receiving a request for such information), or (ii) with respect to any other
litigation, arbitration or mediation involving this Agreement, including but not limited to enforcement of this Agreement.
The Executive agrees that, upon termination of the Executive’s employment with the Company, all Confidential Information
in the Executive’s possession that is in written, digital or other tangible form (together with all copies or duplicates
thereof, including computer files) shall be returned to the Company and shall not be retained by the Executive or furnished
to any third party, in any form except as provided herein; provided, however, that the Executive shall not be obligated to
treat as confidential, or return to the Company copies of any Confidential Information that (a) was publicly known at the
time of disclosure to the Executive, (b) becomes publicly known or available thereafter other than by any means in violation
of this Agreement or any other duty owed to the Company by any person or entity, or (c) is lawfully disclosed to the Executive
by a third party. As used in this Agreement, the term “Confidential Information” means: information disclosed
to the Executive or known by the Executive as a consequence of or through the Executive’s relationship with the Company,
about the customers, employees, business methods, public relations methods, organization, procedures or finances, including,
without limitation, information of or relating to customer lists, of the Company Group.
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7.
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Protective
Covenant. The Executive acknowledges and agrees that should she accept a position of any business or organization
where her duties, or those of others who report directly or indirectly to her, include any activities in the fields of electronically
simulated trivia, sports games or other interactive experiences (e.g., advertising, single player arcade games), or tableside
order and payment in the hospitality industry, which in the reasonable judgment of the Company is, or as a result of the Executive’s
engagement or participation would become, directly competitive with any aspect of the business of the Company Group (a “Covered
Position”), that such position would inevitably lead to a disclosure of Confidential Information in contravention
of Section 6. Accordingly, and without limiting the provisions of Section 6, the Executive agrees that during the Period of
Employment, the Executive shall not accept employment in a Covered Position. The Executive expressly acknowledges and agrees
that the foregoing restriction is reasonable and necessary in order to protect the Confidential Information of the Company
Group.
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8.
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Anti-Solicitation.
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8.1
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Business
Relationships. The Executive promises and agrees that during the Period of Employment, the Executive will not, directly
or indirectly, individually or as a consultant to, or as an employee, officer, stockholder, director or other owner or participant
in any business, influence or attempt to influence customers, vendors, suppliers, joint venturers, associates, consultants,
agents, or partners of the Company or any of its affiliates (collectively, the “Company Group”), either
directly or indirectly, to divert their business away from the Company Group, to any individual, partnership, firm, corporation
or other entity then in competition with the business of any entity within the Company Group, and he will not otherwise materially
interfere with any business relationship of any entity within the Company Group.
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8.2
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Executives.
The Executive promises and agrees that during the Period of Employment and for a period of one (1) year thereafter, the
Executive will not, directly or indirectly, individually or as a consultant to, or as an employee, officer, stockholder, director
or other owner of or participant in any business, solicit (or assist in soliciting) any person who is then, or at any time
within six (6) months prior thereto was, an employee of an entity within the Company Group who earned annually $50,000 or
more as an employee of such entity during the last six (6) months of his or her own employment to work for (as an employee,
consultant or otherwise) any business, individual, partnership, firm, corporation, or other entity whether or not engaged
in competitive business with any entity in the Company Group.
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9.
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Withholding
Taxes. Notwithstanding anything else herein to the contrary, the Company may withhold (or cause there to be withheld,
as the case may be) from any amounts otherwise due or payable under or pursuant to this Agreement such federal, state and
local income, employment, or other taxes as may be required to be withheld pursuant to any applicable law or regulation.
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10.
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Assignment.
This Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign
or transfer this Agreement or any rights or obligations hereunder; provided, however, that in the event of a
merger, consolidation, or transfer or sale of all or substantially all of the assets of the Company with or to any other individual(s)
or entity, this Agreement shall, subject to the provisions hereof, be binding upon and inure to the benefit of such successor
and such successor shall discharge and perform all the promises, covenants, duties, and obligations of the Company hereunder.
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11.
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Number
and Gender. Where the context requires, the singular shall include the plural, the plural shall include the singular,
and any gender shall include all other genders.
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12.
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Section
Headings. The section headings of, and titles of paragraphs and subparagraphs contained in, this Agreement are for
the purpose of convenience only, and they neither form a part of this Agreement nor are they to be used in the construction
or interpretation thereof.
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13.
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Governing
Law. This Agreement, and all questions relating to its validity, interpretation, performance and enforcement, as well
as the legal relations hereby created between the parties hereto, shall be governed by and construed under, and interpreted
and enforced in accordance with, the laws of the State of California, notwithstanding any California or other conflict of
law provision to the contrary.
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14.
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Severability.
If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions
or applications of this Agreement which can be given effect without the invalid provisions or applications and to this end
the provisions of this Agreement are declared to be severable.
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15.
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Entire
Agreement. Except as otherwise expressly set forth herein, this Agreement, together with the Exhibits contemplated
hereby, including the Confidentiality and Work for Hire Agreement and Mutual Agreement to Arbitrate, embodies the entire agreement
of the parties hereto respecting the matters within its scope. This Agreement supersedes all prior and contemporaneous agreements
of the parties hereto that directly or indirectly bears upon the subject matter hereof. Any prior negotiations, correspondence,
agreements, proposals or understandings relating to the subject matter hereof shall be deemed to have been merged into this
Agreement, and to the extent inconsistent herewith, such negotiations, correspondence, agreements, proposals, or understandings
shall be deemed to be of no force or effect. There are no representations, warranties, or agreements, whether express or implied,
or oral or written, with respect to the subject matter hereof, except as expressly set forth herein.
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16.
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Modifications.
This Agreement may not be amended, modified or changed (in whole or in part), except by a formal, definitive written agreement
expressly referring to this Agreement, which agreement is executed by both of the parties hereto. Without limiting the foregoing,
the at-will nature of Executive’s employment by the Company may only be modified in a writing approved by the Company’s
Board of Directors and executed by both the Company and the Executive.
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17.
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Waiver.
Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any right, remedy, power or privilege, nor shall any waiver of any
right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the
party asserted to have granted such waiver.
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18.
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Arbitration.
Any controversy arising out of or relating to the Executive’s employment (whether or not before or after the expiration
of the Period of Employment), any termination of the Executive’s employment, this Agreement, the Confidentiality and
Work for Hire Agreement referred to in Section 5, any Stock Unit Agreement, stock option agreement or any other agreements
relating to the grant to Executive of equity-based awards, the enforcement or interpretation of any of such agreements, or
because of an alleged breach, default, or misrepresentation in connection with any of the provisions of any such agreement,
including (without limitation) any state or federal statutory claims, shall be submitted to arbitration in accordance with
the provisions set forth on Exhibit C hereto.
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Nothing
in this Agreement or the attached Exhibit C shall prohibit or limit the parties from seeking provisional remedies under
California Code of Civil Procedure section 1281.8, including, but not limited to, injunctive relief from a California court
of competent jurisdiction. Without limiting the foregoing, the Executive and the Company acknowledge that any breach of any
of the covenants or provisions contained in Section 6, 7 or 8 of this Agreement or in the Confidentiality and Work for Hire
Agreement could result in irreparable injury to either of the parties hereto for which there might be no adequate remedy at
law, and that, in the event of such a breach or threat thereof, the non-breaching party shall be entitled to obtain a temporary
restraining order and/or a preliminary injunction and a permanent injunction restraining the other party hereto from engaging
in any activities prohibited by any covenant or provision in Section 6, 7 or 8 of this Agreement or in the Confidentiality
and Work for Hire Agreement or such other equitable relief as may be required to enforce specifically any of such covenants
or provisions.
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19.
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Insurance.
The Company shall have the right at its own cost and expense to apply for and to secure in its own name, or otherwise, life,
health or accident insurance or any or all of them covering the Executive, and the Executive agrees to submit to any usual
and customary medical examination and otherwise cooperate with the Company in connection with the procurement of any such
insurance and any claims thereunder.
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20.
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Notices.
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(a)
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All
notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall
be deemed to have been duly given and made if (i) delivered by hand, (ii) otherwise delivered against receipt therefor, or
(iii) sent by registered or certified mail, postage prepaid, return receipt requested. Any notice shall be duly addressed
to the parties as follows:
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(i)
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if
to the Company:
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NTN
Buzztime, Inc.
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1800
Aston Avenue, Suite 100
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Carlsbad,
CA 92008
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Attn:Board
of Directors
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(ii)
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if
to the Executive, the to address most recently on file in the payroll records of the Company.
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(b)
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Any
party may alter the address to which communications or copies are to be sent by giving notice of such change of address in
conformity with the provisions of this Section 20 for the giving of notice. Any communication shall be effective when delivered
by hand, when otherwise delivered against receipt therefor, or five (5) business days after being mailed in accordance with
the foregoing.
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21.
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Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which together shall constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the
parties reflected hereon as the signatories. Photographic copies of such signed counterparts may be used in lieu of the originals
for any purpose.
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22.
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Legal
Counsel; Mutual Drafting. Each party recognizes that this is a legally binding contract and acknowledges and agrees
that they have had the opportunity to consult with legal counsel of their choice. Each party has cooperated in the drafting,
negotiation and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not
be construed against either party on the basis of that party being the drafter of such language. The Executive agrees and
acknowledges that she has read and understands this Agreement, is entering into it freely and voluntarily, and has been advised
to seek counsel prior to entering into this Agreement and has had ample opportunity to do so.
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23.
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Code
Section 409A.
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(a)
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It
is intended that any amounts payable under this Agreement and the Company’s exercise of authority or discretion hereunder
shall comply with Section 409A of the Code (including the Treasury regulations and other published guidance relating thereto)
(“Code Section 409A”) so as not to subject the Executive to any interest or additional tax imposed under
Code Section 409A. To the extent that any amount payable under this Agreement would trigger the additional tax imposed by
Code Section 409A, the Agreement shall be modified to avoid such additional tax yet preserve (to the nearest extent reasonably
possible) the intended benefit payable to the Executive.
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(b)
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Without
limiting the generality of the foregoing, and notwithstanding any provision in this Agreement to the contrary, any payments
made from the date of the Executive’s termination of employment through March 15th of the calendar year following such
termination, are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations
and thus payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations; to the extent such payments are made following said March 15th, they are intended to constitute separate payments
for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations made upon an involuntary separation from service and payable
pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision, with
any excess amount being regarded as subject to the distribution requirements of Section 409A(a)(2)(A) of the Code, including,
without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code. For purposes of the foregoing, if upon Executive’s
separation from service she is then a “specified employee” (within the meaning of Code Section 409A), then to
the extent necessary to comply with Code Section 409A and avoid the imposition of taxes under Code Section 409A, the Company
shall defer payment of “nonqualified deferred compensation” subject to Code Section 409A payable as a result of
and within six (6) months following such separation from service under this Agreement until the earlier of (i) the first business
day of the seventh month following Executive’s separation from service, or (ii) ten (10) days after the Company receives
notification of Executive’s death. If the Company determines that any other payments hereunder fail to satisfy the distribution
requirement of Section 409A(a)(2)(A) of the Code, then the payment of such benefit shall be delayed to the minimum extent
necessary so that such payments are not subject to the provisions of Section 409A(a)(1) of the Code. Any payments that are
delayed as a result of this Section 23(b) shall be paid without interest.
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IN
WITNESS WHEREOF, the Company and the Executive have executed this Agreement as of the first date set forth above.
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“COMPANY”
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NTN
Buzztime, Inc., a Delaware corporation
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By:
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/s/
Allen Wolff
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Name:
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Allen
Wolff
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Title:
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Interim
CEO
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“EXECUTIVE”
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/s/
Sandra Gurrola
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Sandra
Gurrola
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EXHIBIT
A
CONFIDENTIALITY
DISCLOSURE
None.
EXHIBIT
B
NTN
BUZZTIME, INC.
CONFIDENTIALITY
AND WORK FOR HIRE AGREEMENT
EXHIBIT
C
MUTUAL
AGREEMENT TO ARBITRATE
This
Mutual Arbitration Agreement (“Arbitration Agreement”) is entered into between NTN Buzztime, Inc. (“the Company”)
and Sandra Gurrola, an individual (the “Executive”).
Agreement
to Arbitrate Certain Disputes and Claims
Executive
and Company agree that they will submit any claim, dispute, and/or controversy relating to or arising from Executive’s employment
with Company to final and binding arbitration. Arbitration shall be the exclusive means of resolving the claim, dispute and/or
controversy regardless of whether it is based on tort, contract, statute, equity and/or other laws. This shall include, but not
be limited to, claims of wrongful termination, discrimination, harassment, conversion, theft of trade secrets, unfair competition,
damage to person or property, breach of contract, defamation, violation of any other non-criminal federal, state or other governmental
common law, statute, regulation or ordinance. This Arbitration Agreement shall apply to actions initiated by Executive or Company.
Company
and Executive understand and agree that arbitration of the disputes and claims covered by this Arbitration Agreement shall be
the sole and exclusive mechanism for resolving any and all existing and future disputes or claims arising out of Executive’s
recruitment to or employment with the Company or the termination thereof, except as specified below.
Claims
Not Subject to Arbitration
Company
and Executive further understand and agree that the following disputes and claims are not covered by this Arbitration Agreement
and shall therefore be resolved as required by the law then in effect:
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●
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Executive’s
claims for workers’ compensation benefits, unemployment insurance, or state or federal disability insurance.
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●
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Either
party’s request for temporary injunctive relief prior to resolution of the dispute on its merits in an arbitration proceeding.
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●
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Any
other dispute or claim that has been expressly excluded from arbitration by statute or binding legal precedent.
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●
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Any
claims which, as a matter of law then in effect, cannot be the subject of a mandatory arbitration agreement.
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This
Arbitration Agreement does not prevent Executive from filing a charge with certain local, state or federal administrative agencies
such as the United States Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing,
or prevent Executive from filing for unemployment insurance or workers’ compensation benefits. Nothing in this Arbitration
Agreement limits Executive’s rights, or those of the Company, to seek provisional relief pursuant to California Code of
Civil Procedure section 1281.8 or any similar statute of applicable jurisdiction.
Final
and Binding Arbitration; Waiver of Trial Before Court, Jury or Government Agency
Company
and Executive understand and agree that the arbitration of disputes and claims under this Arbitration Agreement shall be instead
of a trial before a court or jury or a hearing before a government agency. Company and Executive understand and agree that, by
signing this Arbitration Agreement, Company and Executive are expressly waiving any and all rights to a trial before a court or
jury or before a government agency regarding any disputes and claims which Company and Executive now have or which Company and
Executive may in the future have that are subject to arbitration under this Arbitration Agreement, except as provided in the preceding
section.
Arbitration
Procedures
Any
arbitration held under this Arbitration Agreement shall be conducted before a single neutral arbitrator and shall be administered
by the Judicial Arbitration and Mediation Service (“JAMS”) or its successor, unless the parties otherwise stipulate.
The party initiating arbitration must provide written notice of the request to arbitrate to the other party and to JAMS within
the applicable statute(s) of limitations. Written notice to the Company is to be directed to the Company’s Human Resources
Department. The arbitration shall be conducted in accordance with the JAMS Employment Arbitration Rules and Procedures (the “JAMS
Rules”), available for review at http://www.jamsadr.com, as those rules are in effect at the time of the arbitration; provided,
however, that the arbitrator shall allow the discovery authorized by California Code of Civil Procedure section 1283.05 or any
other discovery required by California law. The parties shall attempt to jointly select the single neutral arbitrator. If they
are unable to reach agreement, the procedures contained in the JAMS Rules shall apply, or JAMS shall appoint the single arbitrator.
The parties are entitled to be represented by counsel during the arbitration. To the extent that any of the JAMS Rules or anything
in this Arbitration Agreement conflicts with any arbitration procedures required by California law, the arbitration procedures
required by California law shall govern.
In
the event JAMS is no longer able to supply the arbitrator, such arbitrator shall be selected from the American Arbitration Association
(“AAA”) in accordance with AAA’s employment arbitration rules, available for review at http://www.adr.org, as
those rules are in effect at the time of the arbitration, subject to the same terms and conditions as arbitration with JAMS as
referenced in the preceding paragraph.
Place
of Arbitration
The
arbitration shall take place in San Diego County, California, or, at the Executive’s option, in the county in which the
Executive works, or last worked, for the Company. The parties may agree to hold the arbitration at any other place mutually agreeable
to both of them.
Discovery
The
arbitrator shall allow the discovery authorized by California Code of Civil Procedure section 1283.05 or any other discovery required
by California law.
Written
Arbitration Award
In
making an award, the Arbitrator shall have the authority to make any finding and determine any remedy congruent with applicable
law, including an award of compensatory or punitive damages. In reaching a decision, the Arbitrator shall adhere to relevant law
and applicable legal precedent, and shall have no power to vary therefrom.
The
Arbitrator shall issue a written award that sets forth the essential findings and conclusions on which the award is based. The
Arbitrator shall have the authority to award any relief authorized by law in connection with the asserted claims or disputes.
The Arbitrator’s award shall be final and binding on both the Company and Executive and it shall provide the exclusive remedy(ies)
for resolving any and all disputes and claims subject to arbitration under this Arbitration Agreement. The Arbitrator’s
award shall be subject to correction, confirmation, or vacation, by a competent California court as provided by California Code
of Civil Procedure Section 1285.8 et seq and any applicable California case law setting forth the standard of judicial review
of arbitration awards. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be
vacated or corrected on appeal to a court of competent jurisdiction for any such error.
Governing
Law
Company
and Executive understand that this Arbitration Agreement and its validity, construction and performance shall be governed by the
laws of the State of California, without reference to rules relating to conflicts of law. Any dispute(s) and claim(s) to be arbitrated
under this Arbitration Agreement shall be governed by the laws of the State of California, without reference to rules relating
to conflicts of law.
Costs
of Arbitration
The
Company will bear the arbitrator’s fee and any other type of expense or cost that the employee would not be required to
bear if he or she were free to bring the dispute(s) or claim(s) in court as well as any other expense or cost that is unique to
arbitration. If the Executive is the party initiating arbitration, he/she will be required to contribute to the administrative
costs of the arbitration the same amount which he/she would have paid as a filing fee in order to commence the action in a civil
court of law. The Company and Executive shall each bear their own attorneys’ fees incurred in connection with the arbitration,
and the arbitrator will not have authority to award attorneys’ fees unless a statute or contract at issue in the dispute
specifically authorizes the award of attorneys’ fees to the prevailing party, in which case the arbitrator shall have the
authority to make an award of attorneys’ fees as required or permitted by applicable law. If there is a dispute as to whether
the Company or Executive is the prevailing party in the arbitration, the Arbitrator will decide this issue.
Severability
Company
and Executive understand and agree that if any term or portion of this Arbitration Agreement shall, for any reason, be held to
be invalid or unenforceable or to be contrary to public policy or any law, then the remainder of this Arbitration Agreement shall
not be affected by such invalidity or unenforceability but shall remain in full force and effect, as if the invalid or unenforceable
term or portion thereof had not existed within this Arbitration Agreement.
Complete
Agreement
Company
and Executive understand and agree that this Arbitration Agreement and the Employment Agreement to which this agreement is attached
contain the complete agreement between the Company and Executive regarding the subjects covered hereby; that it supersedes any
and all prior representations and agreements between us, if any. This Arbitration Agreement may be modified only in a writing,
expressly referencing this Arbitration Agreement and Executive by full name, and signed by the Chief Executive Officer of the
Company. Any such written modification must also expressly state the intention of the parties to modify this Arbitration Agreement.
Knowing
and Voluntary Agreement
The
Executive is advised to consult with attorneys of his or her own choosing before signing this Arbitration Agreement, and acknowledges
that he or she has had an opportunity to do so. By signing this Arbitration Agreement, Executive agrees that he or she has read
this Arbitration Agreement carefully and understand that by signing it, he or she is waiving all rights to a trial or hearing
before a court or jury or government agency of any and all disputes and claims regarding Executive’s employment with the
Company or the recruitment to or termination thereof (except as otherwise stated herein).
Consideration
The
parties’ mutual agreement to arbitrate the claims identified herein, and the Company’s agreement to pay most of the
costs associated with the arbitration, provide good and sufficient consideration for the mutual promises to arbitrate.
PLEASE
READ CAREFULLY. BY SIGNING THIS AGREEMENT, EMPLOYEE AND THE COMPANY ARE GIVING UP THEIR RIGHT TO FILE A LAWSUIT IN A COURT OF
LAW AND TO HAVE THEIR CASE HEARD BY A JUDGE OR JURY AS TO ANY CLAIMS COVERED BY THIS AGREEMENT TO ARBITRATE.
|
Date:
|
September
17, 2019
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|
/s/
Sandra Gurrola
|
|
|
|
|
Sandra
Gurrola
|
|
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Date:
|
September
17, 2019
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NTN
Buzztime, Inc.
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|
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/s/
Allen Wolff
|
|
|
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|
By:
|
Allen
Wolff
|
|
|
|
|
Title:
|
Interim
CEO
|
LIMITED
TERM EMPLOYMENT AND SEPARATION AGREEMENT
AND
GENERAL RELEASE OF ALL CLAIMS
This
Limited Term Employment and Separation Agreement and General Release of All Claims (“Agreement”) is made by and between
NTN BUZZTIME, INC. on behalf of itself and its affiliates (“Buzztime” or “the Company”) and Ram Krishnan
(“Employee”) with respect to the following facts:
A.
Employee is employed by the Company as the Chief Executive Officer pursuant to the terms of his Employment Agreement effective
September 15, 2014 and amended on March 18, 2018 (the “CEO Employment Agreement”).
B.
Employee and Company agree to terminate the CEO Employment Agreement as provided herein, and continue Employee’s employment
with Company for a limited period of time as Director of Special Projects under the terms of this Agreement.
C.
Company and Employee agree that Employee’s employment with the Company will terminate effective October 17, 2019 and that
Employee’s termination will be considered as a voluntary resignation for all purposes.
D.
To facilitate this transition, the Company is offering Employee consideration as described below provided Employee executes this
Agreement no more than 21 days after his receipt of this Agreement, does not exercise the right to revoke it, and remains in compliance
with its terms.
E.
This Agreement is presented to Employee on September 16, 2019.
Company
and Employee agree:
1.
Retention. Subject to the terms expressly
set forth in this Agreement, Company hereby employs the Executive, and Executive does hereby accept and agree to continue employment
with Company, from the Effective Date of this Agreement until October 17, 2019 (the “Period of Employment”) as set
forth in this Agreement. On October 17, 2019, Executive’s employment with the Company shall terminate, unless Company and
Executive agree in writing to modify or extend the Period of Employment in writing.
1.1
Duties. During the Period of Employment, the Executive shall serve the Company as its Director of Special Projects (the
“DSP”) and shall be subject to the directives of the Company’s Board of Directors (the “Board”),
the Company’s Interim CEO and the corporate policies of the Company as they are in effect and as amended from time to time
throughout the Period of Employment (including, without limitation, the Company’s business conduct and ethics policies).
The DSP shall work closely with the Interim CEO on areas as directed by the Interim CEO or the Board, including but not limited
to operations, customer strategy, product roadmap, potential or actual corporate transactions, and facilitating a smooth and efficient
transition for the Interim CEO. DSP shall be available to provide in-person and telephonic guidance and consultation to members
of the Board on an as-needed basis.
1.2
No Other Employment. During the Period of Employment, the Executive shall both (i) devote substantially all of the Executive’s
business time, energy and skill to the performance of the Executive’s duties for the Company, and (ii) hold no other employment.
The Company shall have the right to request the Executive to resign from any board or similar body on which he may then serve
if the Board reasonably determines that the Executive’s business related to such service is then in competition or conflicts
with any business of the Company or any of its affiliates, successors or assigns. Nothing in this Section 1.2 shall be construed
as preventing Executive from engaging in the investment of his personal assets.
1.3
No Breach of Contract. The Executive hereby represents to the Company that: (i) the execution and delivery of this Agreement
by the Executive and the Company and the performance by the Executive of the Executive’s duties hereunder shall not constitute
a breach of, or otherwise contravene, the terms of any other agreement or policy to which the Executive is a party or otherwise
bound; (ii) the Executive has no information (including, without limitation, confidential information and trade secrets) relating
to any other person or entity which would prevent, or be violated by, the Executive entering into this Agreement or carrying out
his duties hereunder; and (iii) the Executive is not bound by any confidentiality, trade secret or similar agreement, other than
this Agreement and the Confidentiality and Work for Hire Agreement entered into by Executive with Company on or about September
16, 2014 (the “Confidentiality and Work for Hire Agreement”).
2.
Compensation.
2.1
Base Salary. In exchange for Employee’s continued employment during the Period of Employment, agreement to, and compliance
with, the terms of this Agreement, and execution of the general release of claims set forth in this Agreement, the Company shall
pay Employee in accordance with the Company’s regular payroll practices in effect at the time, but not less frequently than
in monthly installments, at the annualized rate of Three Hundred Fifty Thousand Dollars ($350,000) (the “Base Salary”).
If Employee’s employment with the Company is terminated by the Company for any reason without Cause prior to the completion
of the Period of Employment, Employee shall be entitled to receive the Base Salary for the entire Period of Employment. “Cause”
shall have the meaning set forth under section 4.4(b) of the CEO Employment Agreement.
2.2
Additional Consideration.
(a)
As consideration for the release of claims set forth in Section 4 of this Agreement, on the Effective Date of this Agreement as
defined in Section 7.4 below, the Company agrees that 5,000 Restricted Stock Units (“RSUs”) of the Employee’s
currently outstanding RSUs shall become fully vested and non-forfeitable; and (ii) Company shall grant to Employee 30,000 RSUs
subject to the terms set forth in the 2019 Performance Incentive Plan and in accordance with the terms of an RSU agreement to
be entered into by the Company and Employee (the “RSU Grant”). The RSU Agreement shall provide that the RSU Grant
shall vest upon the effective date of a Change in Control Transaction. “Change in Control Transaction” means a transaction
in which an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) acquires all
of the then-outstanding equity interests of the Company, whether by merger, tender offer, statutory share exchange, consolidation
or similar corporate transaction on or before March 17, 2020, or in which an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) acquires 51% of the then-outstanding equity interest of the Company on or before
March 17, 2020, and then that same individual, entity or group acquires the remaining equity so that it holds all of the then-outstanding
equity interest of the Company on or before June 17, 2020.
(b)
Additionally, following the termination of his employment as DSP as provided in this Agreement, and provided that on or after
termination of his employment as DSP, Employee has executed the Affirmation of Release (the “Affirmation”) attached
hereto as Exhibit A, and provided further that Employee has not sought to revoke, invalidate, terminate or void this Agreement,
the Company agrees that 5,000 Restricted Stock Units (“RSUs”) of the Employee’s currently outstanding RSUs shall
fully vest.
2.3
Adequate Consideration. Employee agrees that the consideration in this Agreement is adequate for the promises and representations
made in this Agreement, including Employee’s release set forth below and in the Affirmation, and for his continued compliance
with the terms of this Agreement.
2.4
Termination for Cause. In the event of a termination by the Company of Employee’s employment prior to the completion
of the Period of Employment for Cause, Company shall pay Employee any Base Salary that had accrued but had not been paid, including
accrued and unpaid personal time off, as of the termination date and Company shall have no further obligations to make or provide
to Employee, and Employee shall have no further right to receive or obtain from the Company, any payment, consideration or benefits.
3.
Benefits.
3.1
Retirement, Welfare and Fringe Benefits; Paid Time Off. During the Period of Employment, the Executive shall be entitled
to participate in all employee pension and welfare benefit plans and programs, and fringe benefit plans and programs, made available
by the Company to the Company’s employees generally and to other executives of the Company, in accordance with the eligibility
and participation provisions of such plans and as such plans or programs may be in effect from time to time. During the Period
of Employment, Employee shall be permitted time off in accordance with the Company’s PTO policies in effect from time to
time and shall also be entitled to all other holiday and leave pay generally available to other executives of the Company.
4.
General Release.
4.1
Employee unconditionally, irrevocably and absolutely releases and discharges the Company, and any parent and subsidiary corporations,
divisions and other affiliated entities of the Company, past and present, as well as the Company’s employees, officers,
directors, agents, attorneys, successors and assigns (collectively, “Released Parties”), from all claims related in
any way to the transactions or occurrences between them to date to the fullest extent permitted by law including, but not limited
to, Employee’s employment with the Company, the amount and manner of compensation paid to Employee by the Company, the termination
of Employee’s employment, and all other losses, liabilities, claims, demands and causes of action, known or unknown, suspected
or unsuspected, arising directly or indirectly out of or in any way connected with Employee’s employment with the Company.
This release is intended to have the broadest possible application and includes, but is not limited to, any tort, contract, common
law, constitutional or other statutory claims, any claim for penalties, any claim for unpaid wages, commissions, bonuses or other
employment benefits, as well as alleged violations of the California Civil Code, the California Labor Code, the California Government
Code or the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Occupational Safety and Health Act of 1973,
and the California Fair Employment and Housing Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the
Equal Pay Act, the Age Discrimination in Employment Act, and the Older Workers Benefit Protection Act, all as amended, and all
claims for attorneys’ fees, costs and expenses. However, this release will not apply to claims for workers’ compensation
benefits, unemployment insurance benefits, or any other claims that cannot lawfully be waived.
4.2
Employee acknowledges that Employee may discover claims, facts or law different from, or in addition to, the claims, facts or
law that Employee now knows or believes to be true with respect to the subject matter if this Agreement and the claims released
in this Agreement and agrees, nonetheless, that this Agreement and the release contained in it shall be and remain effective in
all respects despite such different or additional facts and Employee waives any and all claims that might arise as a result of
such different or additional facts.
4.3
Employee declares and represents that Employee intends this Agreement to be final, complete, and not subject to any claim of mistake.
Employee executes this release with the full knowledge that this release covers all possible claims against the Released Parties,
to the fullest extent permitted by law. Employee acknowledges that he is not entitled to any payments related to the termination
of his employment that may be provided for under the terms of his CEO Employment Agreement.
4.4
Employee waives Employee’s right to recover any type of personal relief from the Company, including monetary damages or
reinstatement, in any administrative action or proceeding, whether state or federal, and whether brought by Employee or on Employee’s
behalf by an administrative agency, related in any way to the matters released herein.
4.5
California Civil Code Section 1542 Waiver. Employee agrees that all rights under Section 1542 of the California Civil Code
are expressly waived. That section provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.
5.
Representation Concerning Filing of Legal
Actions. Employee represents that, with the exception of any claims Employee is prohibited by statute or court order from
disclosing, as of the date of this Agreement, Employee has not filed any lawsuits, complaints, petitions, claims or other accusatory
pleadings against the Company or any of the other Released Parties in any court. Employee further agrees that, to the fullest
extent permitted by law, Employee will not prosecute in any court, whether state or federal, any claim or demand of any type related
to the matters released above, it being the intention of the parties that with the execution of this release, the Released Parties
will be absolutely, unconditionally and forever discharged of and from all obligations to or on behalf of Employee related in
any way to the matters discharged herein. Employee also agrees that Employee will not voluntarily participate in, be a witness
in, be a party to, or otherwise voluntarily involve himself in any claims, potential claim or litigation against Employer Released
Parties. Employee further agrees that Employee will not voluntarily assist or encourage in any manner whatsoever any person, party,
or litigant, in any claim, potential claim or action, against Employer Released Parties. This will not prevent Employee from responding
to a legally issued subpoena, responding to inquiries from, or providing information to, a government or law enforcement agency.
6.
No Admissions. By entering into this Agreement,
the Released Parties make no admission that they have engaged, or are now engaging, in any unlawful conduct. The parties understand
and acknowledge that this Agreement is not an admission of liability and shall not be used or construed as such in any legal or
administrative proceeding.
7.
Older Workers’ Benefit Protection Act.
This Agreement is intended to satisfy the requirements of the Older Workers’ Benefit Protection Act, 29 U.S.C. sec. 626(f).
The following general provisions, along with the other provisions of this Agreement, are agreed to for this purpose:
7.1
Employee acknowledges and agrees that he has read and understands the terms of this Agreement.
7.2
Employee is advised that Employee should consult with an attorney before executing this Agreement, and Employee acknowledges that
Employee has obtained and considered any legal advice Employee deems necessary, such that Employee is entering into this Agreement
freely, knowingly, and voluntarily.
7.3
Employee acknowledges that Employee has been given at least 21 days in which to consider whether or not to enter into this Agreement.
Employee understands that, at Employee’s option, Employee may elect not to use the full 21-day consideration period.
7.4
This Agreement shall not become effective or enforceable until the eighth day after Employee signs this Agreement. In other words,
Employee may revoke his acceptance of this Agreement within seven days after the date Employee signs it. Employee’s revocation
must be in writing and received by the Director, Human Resources of Buzztime by 5:00 p.m. on the seventh day in order to be effective.
If Employee does not revoke acceptance within the seven day period, Employee’s acceptance of this Agreement becomes binding
and enforceable on the eighth day (“Effective Date”). Employee will notify the CEO and Chief Legal Counsel in writing
on or shortly after the eighth day after he signs this Agreement as to whether Employee revoked the Agreement.
7.5
This Agreement does not waive or release any rights or claims that Employee may have that are based on any facts or events occurring
after the execution of this Agreement.
8.
Entire Agreement; Survival. This Agreement,
together with any Stock Unit Agreements, Option Agreements and the Exhibits contemplated thereby, and the Confidentiality and
Work for Hire Agreement and Mutual Agreement to Arbitrate, embodies the entire agreement of the parties hereto respecting the
matters within its scope. This Agreement supersedes all prior and contemporaneous agreements of the parties hereto that directly
or indirectly bears upon the subject matter hereof and Company and Employee agree that the CEO Employment Agreement is terminated
and no longer of any force and effect, except that the following sections shall survive the termination and be incorporated in
this Agreement as if fully set forth herein: Sections 4.5 Limitation on Benefits, 6 Confidentiality, 7 Protective Covenant, 8
Anti-Solicitation, 9 Withholding Taxes, 10 Assignment, 11 Number and Gender, 12 Section Headings, 13 Governing Law, 14, Severability,
16 Modifications, 17 Waiver, 18 Arbitration, 19 Insurance, 21 Counterparts, 22 Legal Counsel; Mutual Drafting, 23 U.S. Code Section
409A. Any prior negotiations, correspondence, agreements, proposals or understandings relating to the subject matter hereof shall
be deemed to have been merged into this Agreement, and to the extent inconsistent herewith, such negotiations, correspondence,
agreements, proposals, or understandings shall be deemed to be of no force or effect. There are no representations, warranties,
or agreements, whether express or implied, or oral or written, with respect to the subject matter hereof, except as expressly
set forth herein.
9.
Notices
9.1
All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall
be deemed to have been duly given and made if (i) delivered by hand, (ii) otherwise delivered against receipt therefor, or (iii)
sent by registered or certified mail, postage prepaid, return receipt requested. Any notice shall be duly address to the parties
as follows:
(a)
If to the Company:
1800
Aston Avenue, Suite 100
Carlsbad,
CA 92008
Attn:
Board of Directors
if
to Employee, then to the address most recently on file in the payroll records of the Company.
Any
party may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity
with the provisions of this Section 20 for the giving of notice. Any communication shall be effective when delivered by hand,
when otherwise delivered against receipt therefor, or five (5) business days after being mailed in accordance with the foregoing
10.
Full Defense. This Agreement may be pled
as a full and complete defense to, and may be used as a basis for an injunction against, any action, suit or other proceeding
that may be prosecuted, instituted or attempted by Employee in breach hereof. Employee agrees that in the event an action or proceeding
is instituted by the Released Parties in order to enforce the terms or provisions of this Agreement, the Released Parties shall
be entitled to an award of reasonable costs and attorneys’ fees incurred in connection with enforcing this Agreement.
THE
PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE,
THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
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Dated:
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September
17, 2019
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By:
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/s/
Ram Krishnan
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Ram
Krishnan
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NTN
BUZZTIME, INC.
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Dated:
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September
17, 2019
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By:
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/s/
Steve Mitgang
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Steve
Mitgang
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Exhibit
A
AFFIRMATION
OF RELEASE
(To
be signed by Employee after the termination of employment)
I,
Ram Krishnan (“Employee”), agree as follows:
A.
I have previously executed a Limited Term Employment and Separation Agreement and General Release of Claims (“Agreement”).
B.
My employment with Buzztime has now terminated.
C.
I now wish to receive the Additional Consideration as described in the section 2.2(b) of Agreement. As a condition of receiving
that Additional Consideration, I am agreeing to the terms of this Reaffirmation.
Now,
therefore, I agree as follows:
I
reaffirm my agreement to the all of the terms of the Agreement. In addition, I agree once again to the following specific provisions
of the Agreement, with the intention that my release of claims fully apply to any and all transactions and occurrences after my
execution of the Agreement, through the date of this Reaffirmation:
1.
General Release.
1.1
Employee unconditionally, irrevocably and absolutely releases and discharges the Company, and any parent and subsidiary corporations,
divisions and other affiliated entities of the Company, past and present, as well as the Company’s employees, officers,
directors, agents, attorneys, successors and assigns (collectively, “Released Parties”), from all claims related in
any way to the transactions or occurrences between them to date to the fullest extent permitted by law including, but not limited
to, Employee’s employment with the Company, the amount and manner of compensation paid to Employee by the Company, the termination
of Employee’s employment, and all other losses, liabilities, claims, demands and causes of action, known or unknown, suspected
or unsuspected, arising directly or indirectly out of or in any way connected with Employee’s employment with the Company.
This release is intended to have the broadest possible application and includes, but is not limited to, any tort, contract, common
law, constitutional or other statutory claims, any claim for penalties, any claim for unpaid wages, commissions, bonuses or other
employment benefits, as well as alleged violations of the California Civil Code, the California Labor Code, the California Government
Code or the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Occupational Safety and Health Act of 1973,
and the California Fair Employment and Housing Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the
Equal Pay Act, the Age Discrimination in Employment Act, and the Older Workers Benefit Protection Act, all as amended, and all
claims for attorneys’ fees, costs and expenses. However, this release will not apply to claims for workers’ compensation
benefits, unemployment insurance benefits, or any other claims that cannot lawfully be waived.
1.2
Employee acknowledges that Employee may discover facts or law different from, or in addition to, the facts or law that Employee
knows or believes to be true with respect to the claims released in this Agreement and agrees, nonetheless, that this Agreement
and the release contained in it shall be and remain effective in all respects despite such different or additional facts.
1.3
Employee declares and represents that Employee intends this Agreement to be final, complete, and not subject to any claim of mistake.
Employee executes this release with the full knowledge that this release covers all possible claims against the Released Parties,
to the fullest extent permitted by law.
1.4
Employee expressly waives Employee’s right to recover any type of personal relief from the Company, including monetary damages
or reinstatement, in any administrative action or proceeding, whether state or federal, and whether brought by Employee or on
Employee’s behalf by an administrative agency, related in any way to the matters released herein. Employee expressly acknowledges
that he is not entitled to any payments related to the involuntary termination of his employment that may be provided for under
the terms of his Offer Letter dated April 13, 2015.
2.
California Civil Code Section 1542 Waiver. Employee agrees that all rights under Section 1542 of the California Civil Code
are expressly waived. That section provides:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASING PARTY.
3.
Representation Concerning Filing of Legal Actions. Employee represents that, with the exception of any claims Employee
is prohibited by statute or court order from disclosing, as of the date of this Agreement, Employee has not filed any lawsuits,
complaints, petitions, claims or other accusatory pleadings against the Company or any of the other Released Parties in any court.
Employee further agrees that, to the fullest extent permitted by law, Employee will not prosecute in any court, whether state
or federal, any claim or demand of any type related to the matters released above, it being the intention of the parties that
with the execution of this release, the Released Parties will be absolutely, unconditionally and forever discharged of and from
all obligations to or on behalf of Employee related in any way to the matters discharged herein. Employee also agrees that Employee
will not voluntarily participate in, be a witness in, be a party to, or otherwise voluntarily involve himself in any claims, potential
claim or litigation against Employer Released Parties. Employee further agrees that Employee will not voluntarily assist or encourage
in any manner whatsoever any person, party, or litigant, in any claim, potential claim or action, against Employer Released Parties.
This will not prevent Employee from responding to a legally issued subpoena, responding to inquiries from, or providing information
to, a government or law enforcement agency.
4.
No Admissions. By entering into this Agreement, the Released Parties make no admission that they have engaged, or are now
engaging, in any unlawful conduct. The parties understand and acknowledge that this Agreement is not an admission of liability
and shall not be used or construed as such in any legal or administrative proceeding.
DO
NOT SIGN THIS REAFFIRMATION UNTIL AFTER THE YOUR EMPLOYMENT HAS ENDED.
I
have read, and I understand this Reaffirmation, and have voluntarily signed it on the date set forth below.
