Professional Documents
Culture Documents
RECITALS
WHEREAS, the Company and Employee desire to enter into this Agreement to set forth
the terms and conditions of Employee’s employment with the Company.
2.DUTIES. During the Term (as defined below), Employee shall serve as
_________________ of the Company. Employee shall render such business and professional
services in the performance of his duties, consistent with Employee’s position within the
Company, as well as such services reasonably assigned to him by the [President/Chief
Executive Officer] [Chief Operating Officer] [Board of Directors] or any other individual
appointed by the Company. Employee shall, at all times, report to the [President/Chief
Executive Officer] [Chief Operating Officer] [Board of Directors] of the Company or any
other individual appointed by the Company.
3.OBLIGATIONS. During the Term, Employee shall perform his duties faithfully and to
the best of his ability and shall devote his full business efforts and time exclusively to the
Company and any of its affiliates as may be requested. For the duration of the Term, Employee
shall not engage in other employment, occupation, consulting or other business activity, nor shall
Employee engage in any other activities that conflict with his obligations to the Company.
Employee may be involved in civic and charitable activities, may manage his personal
investments and may serve on the board of directors of any trade associations so long as such
activities do not interfere with the performance of his duties hereunder. During the Term,
Employee shall not serve on any boards of directors, managers or trustees of any other entity
unless approved in writing in advance by the Company, in its absolute and sole discretion.
4.TERM. The term of this Agreement (the “Term”) shall commence upon the Effective
Date and shall terminate on ____________, unless terminated earlier as provided in Section 7
herein [(the “Initial Term”). Unless the Company and Employee expressly agree in writing to
extend the Term or the Company and Employee enter into a new Employment Agreement,
Employee’s employment shall terminate automatically upon expiration of the Term.] OR [Upon
written notice to Employee at least ninety (90) days prior to the end of the Initial Term, the
Company may extend the term of this Agreement for an additional period of [two (2) years] after
the end of the Initial Term (the “Extended Term”). The Initial Term and the Extended Term, if
any, whichever is applicable, shall be referred to as the “Term.”][Note: consider whether an
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automatic extension is desirable.] Unless sooner terminated as provided herein, Employee’s
employment with the Company shall continue through the end of the Term.
5.COMPENSATION.
The annual salary paid to Employee under this Section 5.1 as of the applicable date shall be
referred to as “Base Salary.”
5.2.Discretionary Bonus. The Company may, in its absolute and sole discretion,
pay Employee an annual bonus based on a calendar year period (the “Discretionary Bonus”).
Any Discretionary Bonus paid to Employee shall be paid within a reasonable amount of time
after the amount of such Discretionary Bonus is determined by the Company. Employment with
the Company is a condition precedent to the Employee’s right to receive payment for a
Discretionary Bonus, and Employee will not be considered to have earned the Discretionary
Bonus unless continuously employed by the Company through the time the bonus is paid. [Note:
consider whether any other forms of bonus are desirable.]
6.1.Group Welfare Benefits and Any Other Perquisites. During the Term,
Employee shall be eligible to participate in any group welfare benefits and any other employee
perquisites to the extent provided to similarly situated employees of the Company. The
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foregoing shall not, in any way, require the Company to establish any such benefits or continue
to maintain any such benefits, including disability programs.
6.2.Vacation. During the Term, Employee shall be entitled to paid vacation to the
extent provided to similarly situated employees of the Company in accordance with the
Company’s standard practices and policies. [Note: consider whether to specify a number of
weeks.]
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receive any of the payments described in Section 7.2(ii) unless and until the Employee (i) has
timely returned all Company property and (ii) executes, and does not revoke within any statutory
revocation period, a separation agreement that will include, among other things, a general release
of the Company, its employees, and its affiliates in a form [prescribed by the Company] OR
[substantially similar to that used for similarly situated executives of the Company and its
affiliates]. The Employee shall execute the release within a reasonable period of time after the
Employee’s termination. The Employee’s execution and non-revocation of the release is a
condition precedent to the Employee’s entitlement to the payments described in Section 7.2(ii),
and Employee acknowledges and agrees that the Company’s agreement to provide the payments
constitutes good and valuable consideration for the Employee’s provision of the release. The
Company intends that all compensation referred to in this Agreement will be administered and
paid to Employee in a manner that is intended to comply with Section 409A of the Internal
Revenue Code of 1986, as amended, including without limitation, to the extent necessary to
comply with Section 409A, that no nonqualified deferred compensation payments may be
distributed to Employee until the earlier of (x) the first business day of the seventh month after
the date of Employee’s separation from service or (y) Employee’s death if Employee is a
“specified employee” as defined under Section 409A at the time of separation of service, and the
parties agree to amend this Agreement in any manner necessary to comply with Section 409A.
7.6.Definitions.
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Company made by Employee, (ii) Employee’s [commission / conviction] of a felony, (iii)
Employee’s gross or continued misconduct in connection with Employee’s responsibilities as an
employee under this Agreement, (iv) Employee’s failure to comply with the terms of the
Proprietary Information and Invention Agreement or other rule of conduct adopted by the
Company, (v) Employee’s material breach of any provision of this Agreement or any of the
covenants contained herein or (vi) Employee’s continued failure to substantially perform his
employment duties under this Agreement after Employee has received a written demand for
performance from the Company which specifically sets forth the factual basis for the Company’s
belief that Employee has not substantially performed his duties under this Agreement and after
Employee has had [thirty (30) days] after receipt of such written demand to cure such
nonperformance; provided, however, that the Company shall only be required to give notice one
time under this Section 7.6.1. [Note: this is a standard definition of “Cause” that could be
modified by the parties.]
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10.MISCELLANEOUS PROVISIONS.
If to the Company:
______________
If to Employee:
______________
Notices shall be deemed received at the earliest of actual receipt, confirmed facsimile or
three (3) days following mailing.
10.7.Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, representatives, executors,
administrators, successors, and assigns; provided, however, that Employee may not assign any or
all of his rights or duties hereunder except following the prior written consent of the Company,
which may be withheld in the Company’s absolute and sole discretion.
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10.8.Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all such counterparts together shall
constitute one and the same Agreement.
10.9.Section Headings. The section headings used in this Agreement are inserted
for reference purposes only and shall not in any way affect the meaning or interpretation of this
Agreement.
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and has either obtained such advice of independent legal counsel, or has voluntarily and without
compulsion elected to enter into and be bound by the terms of this Agreement without such
advice of independent legal counsel.
IN WITNESS WHEREOF, the parties hereto have duly executed this Employment
Agreement as of the date first above written.
COMPANY:
[PlayIndies, Ltd.]
By:
Title:
EMPLOYEE:
[Name of Employee]
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Exhibit A
MEDIATION AGREEMENT
This Mediation Agreement (the “Agreement”) is entered into between [PlayIndies, Ltd., a
Nevada corporation,] and all of its affiliates, subsidiaries and parent company (together the
“Company”) and the undersigned employee, as of the date set forth below. The words “you” and
“your” in this Agreement refer to the undersigned employee and anyone acting on the
employee’s behalf, including, without limitation, the employee’s family, heirs, agents and
assigns.
2.Mediation Process. Mediation is a process in which the parties discuss their disputes
with an impartial person (often an attorney or retired judge) who assists them in reaching a
settlement. The mediator may suggest ways of resolving the dispute but may not impose
settlement on the parties.
3.Claims Subject to Mediation. If you feel that you have been subjected to unlawful
discrimination, harassment or retaliation, you must immediately report such conduct to your
immediate supervisor, unless your grievance involves allegations against your immediate
supervisor, and the [____________], in accordance with Company policy, the Company will then
conduct a prompt and thorough investigation of your complaint and will take such remedial
action as is appropriate. If such action does not satisfactorily resolve your complaint, you may
request mediation. The following claims shall be subject to mediation pursuant to this
Agreement unless excluded in Paragraph 4: (a) any claim involving conduct alleged to be in
violation of state or federal law (including, but not limited to, any claim of unlawful
discrimination, harassment or retaliation); and (b) any claim arising out of or relating to the
ending of your employment with the Company. Such claims shall be referred to in this
Agreement as “Qualified Claims.”
4.Excluded Claims. This Agreement does not apply to or cover the following claims: (a)
claims by you for workers’ compensation benefits; (b) claims by you for unemployment benefits;
(c) claims based on an employee pension or benefit plan which contains an arbitration or other
dispute resolution procedure, in which case the provisions of such a plan shall apply; (d) claims
in a court of competent jurisdiction to compel mediation under this Agreement; and (e) claims in
a court of competent jurisdiction to obtain preliminary injunctive and/or other equitable relief in
support of Qualified Claims, including, without limitation, claims for unauthorized disclosure of
confidential, private or proprietary information about or belonging to either party.
5.Notice of Claim. If either party to this Agreement decides to assert any claim against
the other, the party asserting the claim (“Claimant”) must provide the other party (“Respondent”)
with prior written notice as a condition precedent to commencing litigation on that claim.
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Written notice must include a description of the conduct giving rise to the claim, including the
names of all people known to Claimant to be witness to, have knowledge of, or have any
information regarding the conduct involved. If the claim is a Qualified Claim (as defined in
Paragraph 3 above), such notice shall constitute a request for mediation, which mediation, if
required hereunder, must occur prior to the commencement of any litigation by either party. You
must provide written notice to the Company by delivering such notice via hand-delivery or
certified mail to _________________________, Attention: ______________. The Company
must provide written notice to you via hand-delivery or via certified mail sent to your most
recent address of record.
6.Acceptance of Claim. Once Respondent has received written notice for mediation of a
Qualified Claim, Respondent shall be deemed to have agreed to mediate the Qualified Claim
unless, within five business days of receiving such written notice, Respondent provides written
notice to Claimant, in the manner specified in Paragraph 5, that Respondent is unwilling to
mediate the Qualified Claim. If the claim asserted is not a Qualified Claim, Respondent may
nonetheless agree to mediate such claim, but Respondent’s failure to reply to Claimant’s written
notice to mediate a non-Qualified Claim shall not be deemed an agreement to mediate the claim.
7.Initiating Mediation. Once a claim has been accepted for mediation by Respondent,
you and the Company shall timely submit a joint request for mediation to the Los Angeles office
of the American Arbitration Association (“AAA”). The AAA is a not-for-profit, public services
organization dedicated to the resolution of disputes through voluntary dispute resolution
procedures.
9.Costs of Mediation. You and the Company agree that the AAA’s and the mediator’s
fees shall be paid by the Company, unless you and the Company agree otherwise in writing in
connection with resolving the claim.
10.Right to Representation. Each party has the right, but not the obligation, to be
represented in any mediation conducted pursuant to this Agreement by a spokesperson or counsel
of their own choosing. If such right is exercised, each party shall bear the cost of their own
representative.
11.Procedure for Adjudicating Claims Not Resolved through Mediation. You and the
Company agree that the procedures set forth in this Agreement are required to be followed before
either party files litigation against the other. If now or in the future there exists any dispute of
any type whatsoever (whether or not such dispute arises out of or is related to your employment
with the Company) between you and the Company (or between you and any past or present
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officer, director, employee or agent of the Company) and such dispute is not subject to mediation
pursuant to Paragraph 3 of this Agreement, or has been rejected for mediation pursuant to
Paragraph 6 of this Agreement, or has been mediated pursuant to this Agreement without a
satisfactory resolution being achieved, you and the Company then shall have the right to litigate
such dispute. HOWEVER, YOU AND THE COMPANY EXPRESSLY AGREE THAT IN ANY
LITIGATION BETWEEN YOU AND THE COMPANY, BOTH YOU AND THE COMPANY
WAIVE ANY RIGHT EITHER OF YOU MAY POSSESS TO HAVE ANY CLAIM OR CAUSE
OF ACTION TRIED BY A JURY. THIS WAIVER OF THE RIGHT TO A TRIAL BY JURY IS
UNDERTAKEN KNOWINGLY AND VOLUNTARILY AND IS INTENDED TO RELEASE
ANY AND ALL RIGHTS TO A JURY TRIAL ARISING FROM ANY SOURCE. IT IS
AGREED THAT THIS JURY TRIAL WAIVER SHALL IN NO WAY LIMIT THE REMEDIES
EMPLOYEE MAY SEEK IN ANY ACTION.
12.Sole and Entire Agreement. This Agreement constitutes the entire and complete
understanding between you and the Company concerning the subject matter herein. All prior
representations, agreements, arrangements and understandings between or among you and
representatives of the Company concerning the subject matter herein, whether oral or written,
have been fully and completely merged herein and are fully superseded by this Agreement.
13.Survival of Provisions. This Agreement shall continue in force after your employment
relationship with the Company ends. This Agreement shall apply to any claim asserted by the
Company against you and any claim asserted by you against the Company (or against any past or
present officer, director, employee, agent or affiliate of the Company) whether such claim arises
or is asserted before, during or after the ending of your employment relationship with the
Company.
16.Governing Law. This Agreement shall be construed in accordance with and governed
by the laws of the State of California.
COMPANY:
[PlayIndies, Ltd.]
By:
Title:
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EMPLOYEE’S ACCEPTANCE
I acknowledge that I have carefully read and understand the foregoing Agreement and
that I agree to be bound by and comply with all of its terms. I acknowledge that I have entered
into this Agreement voluntarily and that I am not relying on any representation, oral or written,
as to the effect, enforceability or meaning of this Agreement, except as specifically set forth in
the Agreement. I UNDERSTAND AND ACKNOWLEDGE THAT BY SIGNING THIS
AGREEMENT, THE COMPANY AND I ARE GIVING UP THE RIGHT TO A JURY TRIAL
IN CONNECTION WITH ANY CLAIM OR CONTROVERSY OF ANY TYPE WHICH MAY
NOW EXIST OR MAY EXIST IN THE FUTURE BETWEEN US.
Date:
Employee’s Signature
Printed Name
W02-WEST:2MI1\400415540.2 A-4
PROPRIETARY INFORMATION AND INVENTION AGREEMENT
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or electronically transmit any Company Documents from the business premises of the Company
or deliver any Company Documents to any person or entity outside the Company, except as I am
required to do in connection with performing the duties of my employment and pursuant to
appropriate non-disclosure agreements. I further agree that, immediately upon the termination of
my employment by me or by the Company for any reason, or during my employment if so
requested by the Company, I will return all Company Documents, apparatus, equipment, and
other physical property, or any reproduction of such property, excepting only (i) my personal
copies of records relating to my compensation; (ii) my personal copies of any materials
previously distributed generally to the public; and (iii) my copy of this Agreement and will agree
to sign and deliver a Termination Certificate in the form attached hereto as Exhibit 1.
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dissemination, exhibition or performance are being and will inevitably continue to be developed
in the future, which offer new opportunities for exploiting the Inventions, and I intend and hereby
do grant and convey to the Company any and all new rights to and all new exploitation rights in
respect of the Inventions. I agree to confirm any such waivers and consents from time to time as
requested by the Company.
h. I recognize that the Company may have received and in the future
will receive from third parties their confidential or proprietary non-public information subject to a
duty on the Company’s part to maintain the confidentiality of such information and to use it only
for certain limited purposes. At all times, both during my employment by the Company and after
its termination, I will keep in confidence and trust and will not use or disclose any such
confidential or proprietary information or anything relating to it without the prior written consent
of the [President] of the Company, except as may be necessary in the ordinary course of
performing my duties to the Company consistent with the Company’s agreement with such third
party.
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for any reason, or in any way interfere with the relationship between the Company and any such
person, or (ii) solicit for employment or as an independent contractor any person who was an
employee, agent, consultant or independent contractor of the Company during the term of my
employment or six (6) months thereafter.
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the Agreement shall be interpreted as if such provisions were so excluded and shall be enforceable
in accordance with its terms.
8. Although I may work for the Company outside of California or the United
States, I understand and agree that this Agreement shall be interpreted and enforced in accordance
with the laws of the State of California.
10. I agree to indemnify and hold the Company harmless for all damages, costs
and expenses of litigation (including reasonable attorneys’ fees) associated with any violations of
any agreements to which I am a party, any inaccuracies in or breaches of any representations,
warranties or covenants I have made in this Agreement or my Employment Agreement with the
Company, if any, or for any violation by me of any laws.
11. This Agreement (along with the Exhibits attached hereto) and my
Employment Agreement with the Company, if any, constitutes the entire agreement among the
parties hereto pertaining to the subject matter contained herein and supersedes all prior
agreements, representations, and understandings of the parties.
Print Name
Signature Date
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EXHIBIT 1
Termination Certificate
This is to certify that I have complied with all the terms of the Proprietary Information
and Invention Agreement of [PlayIndies, Ltd.] (together with its successors or assigns, the
“Company”) signed by me (the “Agreement”), including the reporting of any Inventions or
other Proprietary Information (as defined therein), conceived or made by me (solely or jointly
with others) covered by the Agreement.
Further, I certify that I do not have in my possession, nor have I failed to return, any
Company Documents (as defined in the Agreement) or reproductions of any aforementioned
items belonging to the Company.
I further agree that, in compliance with the Agreement, I will preserve as confidential all
Proprietary Information or anything relating or pertaining to any business of the Company or any
of its employees, clients, consultants or licensees.
I further agree that I will not solicit, induce, recruit or encourage any of Company’s
employees to leave their employment, and I will not compete with the business of Company, all
as provided more fully in the Agreement.
Print Name
Signature Date
W02-WEST:2MI1\400415540.2 Exhibit 1
EXHIBIT 2
W02-WEST:2MI1\400415540.2 Exhibit 2
EXHIBIT 3
Print Name
Signature Date
W02-WEST:2MI1\400415540.2 Exhibit 3