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EXHIBIT 10.2
FIRST AMENDMENT
TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this
"AMENDMENT") is dated as of January 26, 2001 and entered into by and between NTN
Communications, Inc., a Delaware corporation (the "COMPANY"), and Stanley B.
Kinsey (the "EXECUTIVE") and is made with reference to that certain Employment
Agreement, dated as of October 7, 1998 (the "EMPLOYMENT AGREEMENT"), by and
between the Company and the Executive.
RECITALS
WHEREAS, the Company and the Executive desire to amend the
Employment Agreement to extend the term of employment for service as chief
executive officer of the Company from three years to four years, resulting in a
new expiration date of October 6, 2002.
WHEREAS, as consideration for the one-year extension, the
Company agrees to provide additional compensation (which may take the form of
cash, stock options, or other remuneration) to the Executive as determined by
the Compensation Committee of the Board of Directors.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENT TO THE EMPLOYMENT AGREEMENT
Section 1 of the Employment Agreement is hereby amended by (i)
deleting the reference to "three (3) years" contained therein and substituting
"four (4) years" therefor and (ii) and deleting the reference to "October 6,
2001" contained therein and substituting "October 6, 2002" therefor.
SECTION 2. ADDITIONAL COMPENSATION
The Company will grant the Executive an option to purchase
350,000 shares of the Company's common stock at the closing price as of the date
hereof. Such option will be substantially in the form of Exhibit A attached to
the Employment Agreement. The Company also agrees to amend two prior stock
option grants issued to the Executive (i) on October 7, 1998 for 650,000 shares
at an exercise price of $1.00 per share and (ii) on October 7, 1999 for 500,000
shares at an exercise price of $0.98 per share, in each case to extend the
period such options may be exercised by the Executive, to the extent exercisable
at the termination of the Executive's employment, from 60 days after termination
to five (5) years after termination (provided that the exercise period for such
option has not expired for its stated term).
SECTION 3. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE EMPLOYMENT AGREEMENT. Except
as specifically amended by this Amendment, the Employment Agreement shall remain
in full force and effect and is hereby ratified and confirmed.
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B. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO INCONSISTENT CONFLICTS OF LAWS PRINCIPLES.
D. EFFECTIVENESS. This Amendment shall become effective upon
the execution of counterparts hereof by the Company and the Executive.
E. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the date first written above.
NTN COMMUNICATIONS, INC.
By: /s/ Kendra Berger
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Name: Kendra Berger
Title: Sr. Vice President
Finance & Administration
AGREED TO AND ACCEPTED:
By: /s/ Stanley B. Kinsey
----------------------
Stanley B. Kinsey
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EXHIBIT A
NTN COMMUNICATIONS, INC.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is made and entered into
as of ________, 2001, by and between NTN COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and Stanley B. Kinsey, an individual (the
"Optionee").
WITNESSETH
WHEREAS, this Agreement is being made and delivered pursuant to the
First Amendment to Employment Agreement, dated January 26, 2001, to the
Employment Agreement dated October 7, 1998, between the Company and the
Optionee.
WHEREAS, the Company's Board of Directors on January 26, 2001
authorized the grant to the Optionee pursuant to the Company's 1995 Stock Option
Plan, as amended, (the "Plan") of an option (the "Option") to purchase all or
any part of 350,000 shares of Common Stock, $.005 par value, of the Company (the
"Common Stock") upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants
made herein and the mutual benefits to be derived herefrom, the parties hereto
agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee the right
and option to purchase, in accordance with the terms and conditions of this
Agreement, an aggregate of 350,000 shares of Common Stock at the price of
$[____] per share (the "Price"), exercisable prior to the close of business on
[_________], 2011 (the "Expiration Date").
2. Vesting and Exercisability of Option. Subject to Sections 2, 3 and
5, the Option will become vested and exercisable as to one-twelfth (1/12) of the
total shares of Common Stock issuable hereunder on the last business day of each
calendar month immediately following October 6, 2001, subject to Optionee's
continuous employment with the Company. The right to purchase any or all of such
shares will terminate on the close of business on the Expiration Date; provided,
however, that the right to exercise this Option is subject to early termination
upon the Optionee's "Termination of Employment" (as defined in the Plan). In the
event of the Optionee's Termination of Employment (other than by reason of death
or termination by the Company without cause) this Option may only be exercised
by Optionee, to the extent exercisable at Termination of Employment, at any time
prior to five (5) years after Termination of Employment.
3. Corporate Transaction. In the event of a Corporate Transaction (as
defined below), the Committee administering the Plan shall notify the Optionee
at least 30 days prior thereto. To the extent not previously vested, the Option
shall vest immediately prior to the consummation of such Corporate Transaction
unless the Committee administering the Plan determines otherwise in the exercise
of its sole discretion. A "Corporate Transaction" means a liquidation or
dissolution of the Company, a merger or consolidation of the Company with or
into another corporation or entity, a sale of all or substantially all of the
assets of the Company, or a purchase of more than 50 percent of the outstanding
capital stock of the Company in a single transaction or a series of related
transactions by one person or more than one person acting in concert.
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4. Method of Exercise of Option and Payment of Purchase Price. Each
exercise of the Option shall be by means of a written notice of exercise
delivered to the Company and specifying the number of whole shares with respect
to which the Option is being exercised, together with any written statements
required pursuant to Section 9 below and payment of the Price in full in cash or
by check payable to the order of the Company; provided that so-called cashless
exercises may be permitted in the discretion of the Committee administering the
Plan. The delivery of shares pursuant to an exercise of this Option will be
conditional upon payment by the Optionee of amounts sufficient to enable the
Company to pay all applicable federal, state and local withholding taxes.
5. Effect of Death of Optionee. The Option and all other rights
hereunder, to the extent such rights shall not have been exercised, shall,
unless sooner terminated pursuant to the Plan, terminate and become null and
void at the end of twelve months following the Optionee's death. During the
twelve-month period after death, the Option may, to the extent exercisable on
the date of death (or earlier termination), be exercised by the executor of the
Optionee's will or the administrator of the holder's estate; provided that in no
event may the Option be exercised by any person after the Expiration Date.
6. Non-Assignability of Option. Subject to the provisions of the Plan,
the Option and the rights and privileges conferred hereby are not transferable
or assignable and may not be offered, sold, pledged, hypothecated or otherwise
disposed of in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment, garnishment, levy or similar process.
During the Optionee's lifetime, the Option may be exercised only by the
Optionee, or, subject to the provisions of Section 5, within twelve months after
his death by the executor of his will or the administrator of his estate, and
not otherwise, regardless of any community property or other interest therein of
the Optionee's spouse or such spouse's successor in interest. In the event that
the spouse of the Optionee shall have acquired a community property interest in
the Option, the Optionee, or such transferees, may exercise it on behalf of the
spouse of the Optionee or such spouse successor in interest.
7. Adjustments and Other Rights. The rights of the Optionee hereunder
will be subject to adjustments and modifications in certain circumstances and
upon occurrence of certain events including a reorganization, merger,
combination, recapitalization, reclassification, stock split, reverse stock
split, stock dividend or stock consolidation, as set forth in the Plan.
8. Optionee Not A Stockholder. Neither the Optionee nor any other
person entitled to exercise the Option shall have any of the rights or
privileges of a shareholder of the Company as to any shares of Common Stock not
actually issued and delivered to him. No adjustment will be made for dividends
or other rights for which the record date is prior to the date on which such
stock certificate or certificates are issued even if such record date is
subsequent to the date upon which notice of exercise was delivered and the
tender of payment was accepted.
9. Application of Securities Laws. No shares of Common Stock may be
purchased pursuant to the Option unless and until any then applicable
requirements of the Securities and Exchange Commission, the California
Department of Corporations and any other regulatory agencies, including any
other state securities law commissioners having jurisdiction over the Company or
such issuance, and any exchanges upon which the Common Stock may be listed,
shall have been fully satisfied. The Optionee represents, agrees and certifies
that:
(a) If the Optionee exercises the Option in whole or in part
at a time when there is not in effect under the Securities Act of 1933, as
amended (the "Act"), a registration statement relating to the Common Stock
issuable upon exercise and available for delivery to him a prospectus meeting
the requirements of Section 10(a)(3) of the Act, the Optionee will acquire the
Common Stock issuable upon such exercise for the purpose of investment and not
with a view to resale or distribution and that, as a
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condition to each such exercise, he or she will furnish to the Company a written
statement to such effect, satisfactory in form and substance to the Company,
which statement also acknowledges that the Option shares have not been
registered under the Act and are "restricted securities" within the meaning of
Rule 144 under the Act and are subject to restrictions on transfer; and
(b) If and when the Optionee proposes to publicly offer or
sell the Common Stock issued to him upon exercise of the Option, the Optionee
will notify the Company prior to any such offering or sale and will abide by the
opinion of counsel to the Company as to whether and under what conditions and
circumstances, if any, he or she may offer and sell such shares.
The Optionee understands that the certificate or certificates
representing the Common Stock acquired pursuant to the Option may bear a legend
referring to the foregoing matters and any limitations under the Act and state
securities laws with respect to the transfer of such Common Stock, and the
Company may impose stop transfer instructions to implement such limitations, if
applicable. Any person or persons entitled to exercise the Option under the
provisions of Section 5 above shall be bound by and obligated under the
provisions of this Section 9 to the same extent as is the Optionee.
10. Notices. Any notice to be given under the terms of this Agreement
or pursuant to the Plan shall be in writing and addressed to the Secretary of
the Company at its principal office and any notice to be given to the Optionee
shall be addressed to him at the address given beneath the Optionee's signature
hereto, or at such other address as either party may hereafter designate in
writing to the other party. Any such notice shall be deemed to have been duly
given when enclosed in a properly sealed envelope addressed as aforesaid,
registered or certified, and deposited (postage and registry or certification
fee prepaid) in a post office or branch post office regularly maintained by the
United States Government.
11. Effect of Agreement. This Agreement shall be assumed by, be binding
upon and inure to the benefit of any successor or successors of the Company to
the extent set forth herein.
12. Withholding. The provisions of the Plan shall govern any
withholding that the Company is required to make with respect to the exercise of
the Option.
13. Applicability of the Plan. The Option and this Agreement will
subject to, and the Company and the Optionee agree to be bound by, all of the
terms and conditions of the Plan. The rights of the Optionee will be subject to
limitations, adjustments, modifications, suspension and termination in certain
circumstances and upon the occurrence of certain conditions as set forth in the
Plan as originally adopted, but shall not be adversely affected by any future
amendments to the Plan.
14. Laws Applicable to Construction. The Option has been granted,
executed and delivered as of the day and year first above written in Carlsbad,
California, and the interpretation, performance and enforcement of the Option
and this Agreement shall be governed by the internal laws of the State of
California.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Optionee has
hereunto set his hand as of the day and year first above written.
NTN COMMUNICATIONS, INC.,
a Delaware corporation
By:
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Kendra Berger
Senior Vice President,
Finance & Administration
OPTIONEE
By:
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Stanley B. Kinsey
6821 Farms View Court
Rancho Santa Fe, CA 92067
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