REIMBURSEMENT, MUTUAL RELEASE
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AND INDEMNIFICATION AGREEMENT
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This Reimbursement, Mutual Release and Indemnification Agreement (the
"Agreement") is made this 30th day of July, 1998, by and between Xxxxxxx X. Xxxx
(hereinafter "Fein") and American Bingo & Gaming Corp. (hereinafter "ABG").
WHEREAS Fein is a member of the Board of Directors of ABG;
WHEREAS ABG recently relocated its corporate headquarters from Austin,
Texas to West Columbia, South Carolina;
WHEREAS Fein's continued participation as a member of the Board of
Directors of ABG will require substantial additional travel and time as a result
of the relocation of ABG;
WHEREAS having discussed this concern with management Fein and ABG have
made a joint determination that, subject to certain terms of separation being
agreed to between Fein and ABG it may be in the best interest of Fein and ABG
for Fein to resign from his Board of Directors position and make the position
available to a Board Member who may more actively participate in ABG; and
WHEREAS ABG acknowledges with appreciation Fein's service to ABG and agrees
to accept Fein's resignation;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and the terms set forth below, the parties agree as follows:
1. Resignation. Fein hereby agrees that, subject to (i) the Board of
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Directors of ABG duly authorizing this Agreement, (ii) an authorized
officer of ABG executing and delivering to Fein this Agreement and
(iii) ABG taking each of the actions set forth herein, Fein will
tender his resignation from all positions held with ABG and its
subsidiary companies (if any) during the Meeting of the Board of
Directors of ABG scheduled for July 30, 1998 at the time set on the
agenda, as approved by Fein.
2. Reimbursement. ABG does hereby agree to reimburse and pay to Fein as
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soon as reasonably possible and in no event later than 5 business days
following the date of this Agreement (i) certain out of pocket
expenses relating to his participation on this Board of Directors in
the amount of $834.30 for which he has previously requested
reimbursement from ABG, and (ii) his $2,000.00 Board of Directors Fee
relating to the July 30, 1998 Board of Directors Meeting.
3. Stock Option. Fein has been duly issued options to purchase 27,000
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shares of ABG's Common Stock, par value $0.001 per share (the
"Option") pursuant to ABG's 1997 Stock Option Plan (the "Plan"). ABG
does hereby represent and agree that, it has or will contemporaneously
with the approval and execution of this Agreement (i) cause the Plan
to be modified to give the Board of Directors of ABG the discretion to
allow specific options issued under the Plan to be exercisable sooner
than 1 year after the date of grant, (ii) take all actions necessary
to accelerate Fein's right to exercise the Options to a time prior to
his planned resignation from the Board of Directors and (iii) take all
actions necessary to approve and confirm that Fein's Options will not
expire due to his resignation from the Board of Directors and to
assure that such Options will otherwise be exercisable by Fein through
April 20, 2003 in accordance with the terms of the Plan and the
agreement under which his Option was provided. In the event that,
subsequent to the Board of Directors approval of this Agreement and
the modifications to the Plan, it is determined that the actions of
the Board of Directors to modify the Plan in the manner set out above
required Shareholder approval for any such changes to the Plan by a
determination of ABG's Shareholders (as evidenced by the shareholders
vote to reject such changes to the Plan such that the Options are
deemed not to be exercisable by Fein) or otherwise (the date of such
determination being the "Determination Date"), ABG shall pay to Fein,
within 10 business days after the Determination Date that sum which is
equal to 27,000 multiplied by the amount by which (i) the highest 30
day average of the closing Bid and Ask price of ABG's Common Stock for
the period from the date of this Agreement to the Determination Date,
exceeds (ii) $2.70. The Board of Directors shall use its best efforts
to avoid a determination that the actions of the Board of Directors to
modify the Plan in the manner set out above required Shareholder
approval.
4. Post Resignation Remarks. ABG acknowledges with appreciation Fein's
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service to ABG and agrees that, except as may otherwise be required by
law, ABG shall not and shall advise and direct its officers,
directors, employees and agents within its control not to make, repeat
or publish any remark, comment or other statement in an attempt to
defame, disparage or detract from Fein's character, reputation,
professional standing or business.
5. Fein Global Release. ABG, on behalf of itself and on behalf of its
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officers, directors, agents, shareholders, principals and owners
thereof hereby releases Fein from any and all past, present or future
claims, demands, actions, causes of actions, costs, judgments,
expenses, attorney's fees, damages and all liabilities whatsoever at
law or in equity, whether known or unknown, that they may have, claim
to have, or have ever had, against Fein, arising from any and all
causes of action, whether intentional, wanton, reckless, malicious,
negligent, grossly negligent, or inadvertent, in contract or in tort,
including any claims relating to any employment matters,
misrepresentations, disclosures and/or failures to disclose, in
connection with all matters, and including but not limited to those
relating to Fein's involvement on the Board of Directors of ABG. In
this regard, the parties to this Agreement intend for the release
provided by this Agreement to cause, to the fullest extent permitted
by law and at equity, the complete and final discharge and
extinguishing of all claims and causes of action against Fein, whether
known or unknown, involving the parties hereto, for all time up to and
including the date of this Agreement. ABG agrees to indemnify and hold
Fein harmless from and against any and all costs, judgments, expenses,
attorney's fees, damages or liabilities whatsoever relating to any and
all claims that may be brought against Fein in connection with ABG or
his position as a member of the Board of Directors of ABG to the
fullest extent authorized by Delaware law as provided in paragraph 7
of the Certificate of Incorporation of ABG, as amended October 17,
1994, against any and all claims, suits, demands brought against Fein
by reason of the fact that he served as a director of ABG.
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6. ABG Release. Except as expressly set out herein, Fein hereby releases
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ABG from any and all past, present or future claims, demands, actions,
causes of actions, costs, judgments, expenses, attorney's fees,
damages and all liabilities whatsoever at law or in equity, whether
known or unknown, that he may have, claim to have, or have ever had,
against ABG arising from any and all causes of action, whether
intentional, wanton, reckless, malicious, negligent, grossly
negligent, or inadvertent, in contract or in tort, including any
claims relating to any employment matters, misrepresentations,
disclosures and/or failures to disclose, in connection with all
matters including but not limited to those matters relating to his
Options, or in connection with his position as a member of the Board
of Directors of ABG. The above notwithstanding this release shall not
release ABG from (A) any of its obligations set out in this Agreement,
or (B) any release, defense, indemnity, right of contribution or other
recovery owed by ABG to Fein for any claims, demands, actions, causes
of actions, costs, judgments, expenses, attorney's fees, damages or
liabilities whatsoever at law or in equity to the extent this release,
defense, indemnity, right of contribution or other recovery would
otherwise have been provided to Fein pursuant to the terms of the
current Certificate of Incorporation of ABG, the current By-Laws of
ABG, any other corporate documentation or Agreements of ABG or as
otherwise provided by law or in equity. In addition, to the extent any
insurance product would provided Fein any protection, release,
defense, indemnity, right of contribution or other recovery relating
to a claim, including but not limited to Director's and Officer's
Insurance, this release shall not act to release Fein's claim or
rights to claim to the extent it would limit his rights to the
protections other wise provided under those insurance products, nor
shall it be construed to in a manner which in any way reduces or
eliminates coverage otherwise available to him under those insurance
products.
7. Additional Information. ABG, after due inquiry of its officers, or
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employees, thereof hereby confirms that it is unaware of any claims,
demands, actions, causes of actions, costs, judgments, expenses,
attorney's fees, damages and all liabilities whatsoever at law or in
equity, whether known or unknown, that ABG or any of its officers, or
employees, may have, claim to have, or have ever had, against Fein.
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8. Future Agreement. This Agreement comprises the entire agreement, oral
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and written, between and among the released parties with regard to the
subject matter of the Agreement. This Agreement may not be amended in
any respect except by writing, duly executed by the released parties
and/or the authorized representatives of the released parties.
9. Severability. If any provision of this Agreement or any portion of any
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provision of this Agreement is at any time deemed or declared void,
voidable or unenforceable, then such provision or portion of such
provision is severable from the remainder of the Agreement and the
remainder of this Agreement shall be fully enforced.
10. Ownership of Claim. Each party to this Agreement represents and
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warrants that the party is the sole and lawful owner of all claims,
matters, and causes of action released by the party as set out above,
that the party has not assigned or transferred to any person,
corporation or entity any such claims, matters or causes of action and
that each party executing this Agreement represents and warrants that
such party has full and complete authority to bind such party to the
Agreement as represented by such party's signature.
11. Further Assurances. The parties shall from time to time promptly
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execute and deliver such further instruments, documents or papers and
perform all acts necessary or proper to carry out and effect the terms
and provisions of this Agreement.
12. Authority. The persons signing this Agreement on behalf of the parties
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warrant and represent that they have all necessary authority to
execute this Agreement and are duly and legally empowered to do so on
behalf of the parties.
13. Counterparts and Fax Signature Pages. It is understood and agreed that
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this Agreement may be executed in duplicate counterpart originals,
each of which shall be deemed an original for all purposes. Signatures
need not be in original and a facsimile and/or copy bearing a copied
or facsimile signature shall suffice as a binding signature for this
Agreement.
14. Gender. Words of any gender used in this Agreement shall be held and
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construed to include any other gender, and words in the singular
number shall be held to include the plural, unless the context
otherwise requires.
15. Supersedes Prior Agreements. It is understood and agreed that this
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Agreement contains the entire agreement between the parties and
supersedes any and all prior agreements and arrangements or
understandings between the parties relating to the subject matter
hereof. No oral understanding, statements, promises or inducements
contrary to the terms of this Agreement exist. This Agreement cannot
be changed or terminated orally.
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WITNESSES:
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
WITNESSES: AMERICAN BINGO AND GAMING CORP.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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By: Xxxxx Xxxxxxx, President and CEO
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