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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective July 1, 1998, by and
between LEISURE TIME CASINOS & RESORTS, INC., a Colorado corporation (the
"Company"), and R. XXXXXX XXXXXXX (the "Employee"). The Company hereby employs
the Employee and the Employee hereby accepts employment on the terms and
conditions hereinafter set forth.
1. TERM. Subject to the provisions for termination as provided in
Sections 4 and 5 of this Agreement, the term of this Agreement shall commence
on July 1, 1998, and shall terminate on June 30, 2001. Subject to the
provisions for termination as provided in Sections 4 and 5 of this Agreement,
this Agreement shall be renewed automatically after June 30, 2001, for
succeeding one year periods on the same terms and conditions as contained in
this Agreement, unless the Company or Employee shall, at least 180 days prior
to the expiration of any such renewal date, give written notice of nonrenewal
of this Agreement.
2. NATURE OF EMPLOYMENT. The Company hereby employs the Employee as
the Executive Vice President Marketing and Sales, Compliance and Licensing of
the Company to perform such duties and have such powers as Employee
substantially performed for the Company on the date of this Agreement as well
as those additional duties and powers as may be agreed upon between the Company
and the Employee. The Company may not materially change the Employee's duties
or positions without Employee's consent. The Employee accepts such employment,
agrees to abide by the Articles of Incorporation, Bylaws, Company policies and
the provisions of this Agreement, and agrees to devote his time and best
efforts to his employment under this Agreement as is reasonably required.
Employee may carry on outside activities so long as those activities do not
conflict with nor compete with Employee's job responsibilities and corporate
duties. The Employee shall, at all times, faithfully with due diligence and to
the best of Employee's ability, experience and talent, perform all the duties
hereunder. Unless otherwise agreed to in writing by the Employee, those
services shall be rendered in the Atlanta, Georgia, metropolitan area.
3. COMPENSATION, VACATIONS AND EXPENSES.
a. BASIC SALARY. The Company shall pay to the Employee a base
salary during the term of this Agreement in accordance with the amount
set forth on Schedule A hereof. This amount may be increased as
determined by the Company through an amendment to Schedule A.
b. BONUS. In addition to the basic salary, the Employee will
receive a bonus to be set at the discretion of the board of directors
of the Company. Nothing shall obligate the Company, in the future, to
pay any bonus or bonuses to the Employee.
c. VACATIONS, FRINGE BENEFITS, AND LEAVES OF ABSENCE. The
Employee shall be entitled to an annual vacation of at least that
specified on Schedule A, but in no event
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less than the minimum vacation time established by the Company for its
employees. The Employee shall further be entitled to participate in
and receive the benefits provided under any employee benefit program
which may be adopted and maintained by the Company (including, without
limitation, those described on Schedule A) and for which the Employee
is eligible by virtue of his employment hereunder, but only as and to
the extent the Employee would otherwise be eligible as provided in any
said program. The Employee shall also bc entitled to leaves of absence
as the Employee deems necessary and the Company, in its sole
discretion, deems reasonable.
d. REIMBURSEMENT OF EXPENSES. The Employee is authorized to
incur reasonable expenses while performing the Employee's duties under
this Agreement, including expenses for entertainment, travel,
automobile, and similar items incurred on behalf of the Company. The
Company will reimburse the Employee upon the presentation by the
employee of itemized accounts of such expenditures. Expenses over
$5,000 in any month must be approved in writing by the Company before
being incurred by the Employee.
4. TERMINATION OF AGREEMENT.
a. TERMINATION OF EMPLOYEE. The Employee may terminate this
Agreement without cause upon 120 days prior written notice to the
Company. In such event, the Employee shall continue to render the
services required under this Agreement and shall be paid on the
regular payment dates the compensation set forth in Schedule A up to
the date of termination.
b. TERMINATION BY THE COMPANY FOR CAUSE. In the event of
Employee's material failure or refusal to observe the provisions of
this Agreement or perform any of the duties required of Employee under
this Agreement, Employee's fraud, misappropriation or embezzlement of
funds, or conviction for any crime punishable as a felony, the Company
may terminate this Agreement upon written notice of such termination
to the Employee and upon payment by the Company to the Employee for
all compensation accrued under this Agreement to the date of
termination. In the event of a termination of Employee's employment
for cause in accordance with this Section 4.b, the Company shall have
no further obligation to the Employee. However, termination of the
Employee's employment for cause shall not terminate or extinguish the
Employee's obligation or liability to pay to the Company or any of its
affiliates any amount owed to them by the Employee, including, but not
limited to, any amounts misappropriated, embezzled or otherwise
obtained by the Employee by reason of any of the occurrences referred
in this Section 4.b without prejudice to any other rights or remedies
of the Company or it affiliates at law or in equity.
c. TERMINATION UPON DEATH OF EMPLOYEE. This Agreement shall
automatically terminate in the event of the Employee's death. In such
case, any accrued
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compensation or benefits shall inure to the estate of the Employee,
and the payment thereof shall be the only liability the Company shall
have to the Employee's estate.
5. ILLNESS AND DISABILITY.
a. ILLNESS. If the Employee is unable to perform the services
required under this Agreement by reason of illness or physical injury
not amounting to disability as defined in Section 5.b, the
compensation otherwise payable to the Employee under this Agreement
shall be continued in full for a period of 60 days after the date
Employee is unable to perform such services.
b. DEFINITION OF DISABILITY. For purposes of this Agreement,
the terms "totally disabled," "disabled" and "disability" shall mean
continuous disability as defined in and for the period necessary to
qualify for benefits under any disability income insurance policies on
the Employee paid for by the Company. If no disability insurance is in
effect on the Employee, such terms shall mean continuous disability
which prevents the Employee from performing Employee's normal duties
pursuant to this Agreement. The Employee or agent of the Employee
shall notify the Company in writing as to the Employee's inability to
perform those duties or the Company shall so notify the Employee. If
they are not able to agree as to the existence of disability in 30
days after receipt of said notice, the determination shall be made by
medical doctors, licensed as such in the State of Georgia, one
designated by the Company and the other by the Employee. If these two
physicians cannot agree, they shall appoint a third licensed medical
doctor and the determination of the majority shall be conclusive and
binding on the Company and the Employee. The fees of all medical
doctors shall be paid by the Company and not by the Employee. For the
purposes of this Agreement, adjudicated mental incompetency shall also
be a definition of disability.
c. SALARY CONTINUATION. If the Employee becomes totally
disabled during the term of this Agreement, the Employee's full salary
shall be continued for a period not to exceed 24 consecutive months,
for the period during which the Employee remains totally disabled or
until the next termination date of the Agreement, whichever is
shorter. If the Company pays premiums on a disability income insurance
policy on the Employee, any proceeds paid to the Employee by reason of
disability under such policy shall be offset against salary
continuation payments due from the Company.
6. CHANGE IN CONTROL. A "change in control" of the Company shall
be deemed to have transpired upon the occurrence after the date hereof of any
one of the following events:
a. at any time any one person (other than Employee), or more
than one person acting as a group, acquires beneficial ownership of
the voting securities of the Company that together with voting
securities beneficially held by such person or group, constitute more
than 20% of the total voting power of the Company's outstanding voting
securities;
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b. the appointment or election of a majority of the members
of the Company's board of directors who are appointed or elected
during any 24 month period but are not endorsed in writing by a
majority of those members of the Company's board of directors who were
directors prior to the date of the appointment or election of the
first such new director comprising the majority; or
c. one person, or more than one person acting as a group,
acquires (or has acquired during the 12 month period ending on the
date of the most recent acquisition by such person or persons) assets
from the Company that have a total fair market value equal to or
greater than one third of the total fair market value of all of the
Company's assets immediately before the acquisition or acquisitions.
At any time after a "change in control" of the Company, the Employee,
at the option of the Employee, shall have the right, upon 30 days' prior
written notice by the Employee to the Company, to cause the Company to
repurchase all or any portion of the common stock of the Company then owned by
the Employee at the higher of (i) the book value thereof as determined by the
independent certified public accountants of the Company based upon the
financial statements of the Company as of the last day of the month prior to
the date of such notice, (ii) the last market value of a share of the Company's
common stock established by the board of directors, or the last price at which
the common stock was sold be the Company or by a shareholder of the Company to
any person (other than the Employee); provided, however, or if the common stock
is listed on a national securities exchange, is admitted to unlisted trading
privileges on such an exchange, or is listed for trading on a trading system of
the National Association of Securities Dealers, Inc., such as the Nasdaq
National Market, the Nasdaq SmallCap Market or the OTC Bulletin Board, then the
value shall be the last reported sale price of the common stock on such an
exchange or system on the last business day prior to the date of such notice or
if no such sale is made on such day, the average of the closing bid prices for
the common stock for such day on such exchange or such system shall be used.
Within 30 days after receipt of such notice, the Company shall pay the Employee
the full amount for such shares of common stock upon delivery of the stock
certificates representing such shares of common stock. The payment shall be in
the form of a cashiers' check or by wire transfer. Also, upon a "change in
control" of the Company, the Employee shall automatically be granted options to
purchase the same number of shares of the Company's common stock as then are
issuable upon exercise of options to purchase the Company's common stock then
owned by the Employee. Such new options shall be immediately exercisable and
shall remain exercisable for ten years. The exercise price thereof shall be
$0.01 per share of common stock. Such new options shall not replace any other
options to purchase the Company's remaining stock then owned by Employee.
7. EMPLOYEE ACTIONS.
a. EMPLOYEE SHALL NOT DISCLOSE INFORMATION. The Employee
recognizes and acknowledges that the list of the Company's and its
subsidiaries' and affiliates' customers, as it may exist from time to
time, and any proprietary or confidential
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information, including, but not limited to financial information and
information pertaining to the Company's, its subsidiaries' and
affiliates' manufacturing, marketing and sales operations, and
potential acquisitions, used by the Company in its business are
valuable and unique assets of the Company. The Employee will not
during or after the term of his employment, disclose the list of the
Company's, its subsidiaries' or affiliates' customers or any part
thereof or any propriety or confidential information to any person,
firm, corporation, association, or other entity for any reason or
purpose whatsoever without the prior written consent or authorization
of the board of directors of the Company. Upon termination of the
Employee's employment by the Company, its subsidiaries or its
affiliates, the Employee shall neither take nor retain any papers,
customer lists, manuals, files, or other document or copies thereof
belonging to the Company, its subsidiaries or its affiliates.
b. NON COMPETE. Employee hereby covenants and agrees that
Employee will not, without the prior written consent of the Company,
directly or indirectly, whether individually or through any entity
controlled by Employee, during the term of this Agreement and for a
period of 3 years from the termination of this Agreement, for any
reason, directly or indirectly, on his own behalf or in the service or
on behalf of others, whether or not for compensation, engage in any
business activity, or have any interest in any person, firm,
corporation or business, through a subsidiary or parent entity or
other entity (whether as a shareholder, agent, joint venturer,
security holder, trustee, partner, consultant, creditor lending credit
or money for the purpose of establishing or operating any such
business, partnership or otherwise) which is competitive with the then
existing business of the Company. Notwithstanding the foregoing,
Employee may own shares of competing companies whose securities are
publicly traded, so long as such securities do not constitute five
percent or more of the outstanding securities of any such company.
c. NON-SOLICITATION. Employee further agrees that as long as
this Agreement remains in effect and for a period of 2 years from its
termination, Employee will not divert any business of the Company
and/or its affiliates or any customers or suppliers of the Company
and/or the Company's and/or its affiliates' business to any other
person, entity or competitor, or induce or attempt to induce, directly
or indirectly, any person to leave his or her employment with the
Company.
d. INTELLECTUAL PROPERTY. Employee shall disclose to the
Company all ideas and business plans developed by the Employee during
the term of Employee's employment which relate to the business of the
Company, its subsidiaries or affiliates or any business conducted by
the Company, its subsidiaries or affiliates. All patents, patent
applications, patent licenses, formulas, inventions, processes,
copyrights, know-how, proprietary information, rights, trademarks, or
trade names, or future improvements thereto developed or conceived of
by the Employee during any period of employment with the Company shall
be promptly disclosed to, and all rights with respect thereto shall be
assigned by the Employee to the Company in consideration of the
remuneration paid or payable to the Employee hereunder.
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e. REMEDIES. Employee acknowledges and agrees that his
obligations provided in this Section 7 are necessary and reasonable in
order to protect Company and its affiliates and their respective
business and Employee expressly agrees that monetary damages would be
inadequate to compensate Company and/or its affiliates for any breach
by Executive of his covenants and agreements set forth herein.
Accordingly, Employee agrees and acknowledges that any such violation
or threatened violation of this Section 7 will cause irreparable
injury to Company and that, in addition to any other remedies that may
be available, in law, in equity or otherwise, Company and its
affiliates shall be entitled to obtain injunctive relief against the
prospective breach of this Section 7 or the continuation of any such
breach by Employee without the necessity of proving actual damages.
f. CONSTRUCTION. In the event that any provision of this
Section 7 should ever be deemed to exceed the time, geographic, or
other limitations permitted by applicable law, then such provision
shall be reformed to the maximum time geographic, or other limitations
permitted by applicable law. The provisions of this Section 7 shall be
applicable for the period indicated and shall survive the termination
of this Agreement
8. GENERAL MATTERS.
a. GOVERNING LAW. This Agreement shall bc governed by the
laws of the State of Ohio and shall be construed in accordance
therewith.
b. NO WAIVER. No provision of this Agreement may be waived
except by an Agreement in writing signed by the waiving party. A
waiver of any term or provision shall not be construed as a waiver of
any other term or provision.
c. AMENDMENT. This Agreement may be amended or altered at any
time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes, signed by all parties.
d. BINDING EFFECT. This Agreement shall be binding upon the
Employee, the Company, and their successors and assigns.
e. CONSTRUCTION. Throughout this Agreement the singular shall
include the plural, the plural shall include the singular, and the
masculine shall include the feminine wherever the context so requires.
f. TEXT TO CONTROL. The headings of Sections are included
solely for convenience of reference. If any conflict between any
heading and the text of this Agreement exists, the text shall control.
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g. SEVERABILITY. If any provision of this Agreement is
declared by any court of competent jurisdiction to be invalid for any
reason, such invalidity shall not affect the remaining provisions
which shall be fully severable, and the Agreement shall be construed
and enforced as if such invalid provision had never been included.
h. ENTIRE AGREEMENT OF THE PARTIES. The parties agree that
this document contains the entire agreement and understanding between
them in relation to the subject matter hereof, and no representations,
warranties, covenants, understandings, or agreements in relation
thereto exist between the parties except as expressly set forth
herein.
i. NOTICES. Every notice or other communication to be given
by either party to the other party with respect to this Agreement,
shall be in writing and shall not be effective for any purpose unless
the same shall be served personally or by national air courier
service, or United States certified mail, return receipt requested,
postage prepaid, addressed, if to the Company at 0000 Xxxxxx Xxxx,
Xxxx, Xxxx 00000, Attention, Secretary, and if to the Employee at 0000
Xxxxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, or such other address
or addresses as the Company or the Employee may from time to time
designate by notice given as above provided. Every notice or other
communication hereunder shall be deemed to have been given as of the
third business day following the date of such mailing (or as of any
earlier date evidenced by a receipt from such national air courier
service or the United States Postal Service) or immediately if
personally delivered. Notices not sent in accordance with the
foregoing shall be of no force and effect until received by the
foregoing parties as such addresses specified herein.
j. DUPLICATE ORIGINALS. This Agreement may be executed in
several counterparts, each of which shall be an original but all of
which together shall constitute one and the same instrument.
k. ARBITRATION. Any dispute or controversy of or relating to
this Agreement, or any breach of this Agreement, shall be settled by
arbitration to be held in Norcross, Georgia, in accordance with the
rules then in effect of the American Arbitration Association or any
successor thereto. The decision of the arbitrator shall be final,
conclusive, and binding on the parties to the arbitration. Judgment
may be entered on the arbitrator's decision in any court having
jurisdiction, and the parties irrevocably consent to the jurisdiction
of the Georgia state courts for this purpose. The Company shall pay
the costs and expenses of such arbitration.
l. ATTORNEYS' FEES. In the event that the Company or the
Employee retains an attorney or attorneys to enforce performance of
this Agreement by the other party or to obtain damages or other relief
because of violation of the terms of this Agreement by the other
party, then all reasonable attorneys' fees and costs of arbitration or
litigation are to
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be borne and paid by the party determined to have failed to perform
this Agreement or to be liable for damages or against which other
relief is granted.
m. SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of the Executive's
employment to the extent necessary to the intended preservation of
such rights and obligations.
n. REMEDIES CUMULATIVE; NO WAIVER. No remedy conferred upon a
party by this Agreement is intended to be exclusive of any other
remedy, and each and every such remedy shall be cumulative and shall
be in addition to any other remedy given hereunder or now or hereafter
existing at law or in equity. No delay or omission by a party in
exercising any right, remedy or power hereunder or existing at law or
in equity shall be construed as a waiver thereof, and any such right,
remedy or power may be exercised by such party from time to time and
as often as may be deemed expedient or necessary by such party in its
sole discretion.
The parties have executed this Agreement to be effective as of the
date first above written.
LEISURE TIME CASINOS & RESORTS, INC.
By: /s/
-------------------------------------
Xxxx X. Xxxxxxx, President
Attest:
/s/
-----------------------------------
Xxxxxx X. Xxxxx, Secretary
EMPLOYEE:
/s/
-----------------------------------------
R. Xxxxxx Xxxxxxx
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SCHEDULE A
DESCRIPTION OF DUTIES AND COMPENSATION
EMPLOYEE: R. Xxxxxx Xxxxxxx
POSITION WITH COMPANY: Executive Vice President Marketing and Sales, Compliance
and Licensing
COMPENSATION:
o Base Salary: $150,000
o Bonus: Paid at the discretion of the board of directors of the
Company
BENEFITS:
o Insurance: Medical, dental, disability (long and short term) and
life to the extent available to all employees of the
Company and paid in accordance with Company policy if
elected by Employee
o Automobile: The Company shall provide the employee with such
automobile as is approved by the President of the
Company. All expenses for the operation (including
insurance) and maintenance of such automobile shall be
paid by the Company or reimbursed to the Employee by the
Company.
o Vacation: Four weeks (20 business days) each calendar year
commencing January 1, 1998. Such vacation time is
available upon approval by the President of the Company.
Such approval will not be unreasonably withheld upon at
least two week notice by Employee. Vacation time will
not accrue from calendar year to calendar year.
o 401(k) Plan: Available for Employee's election if eligible.
o Medical Reimbursement: Available for Employee's election if eligible.
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AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the "Amendment") effective
September 9, 1998, is by and between LEISURE TIME CASINOS & RESORTS, INC., a
Colorado corporation (the "Company"), and R. XXXXXX XXXXXXX (the "Employee").
The Company and the Employee previously entered into an Employment Agreement
that was effective July 1, 1998. This Amendment amends the Employment Agreement
as hereinafter set forth.
1. AMENDMENT TO SECTION 7.a. Section 7.a. of the Agreement is amended
so as amended Section 7.a. reads as follows:
"a. EMPLOYEE SHALL NOT DISCLOSE INFORMATION. The Employee
recognizes and acknowledges that the list of the Company's and its
subsidiaries' and affiliates' customers, as it may exist from time to
time, and any proprietary or confidential information, including, but
not limited to financial information and information pertaining to the
Company's, its subsidiaries' and affiliates' manufacturing, marketing
and sales operations, and potential acquisitions, used by the Company
in its business are valuable and unique assets of the Company. Except
as permitted by the next sentence, the Employee will not during or
after the term of his employment, disclose the list of the Company's,
its subsidiaries' or affiliates' customers or any part thereof or any
propriety or confidential information to any person, firm,
corporation, association, or other entity for any reason or purpose
whatsoever without the prior written consent or authorization of the
board of directors of the Company. Notwithstanding the prohibitions
contained in the foregoing sentence, the Employee shall be permitted
to disclose such information during the term of his employment to
other persons employed by the Company or its subsidiaries who have a
need to know such information for a proper purpose related to the
business of the Company or its subsidiaries. Upon termination of the
Employee's employment by the Company, its subsidiaries or its
affiliates, the Employee shall neither take nor retain any papers,
customer lists, manuals, files, or other document or copies thereof
belonging to the Company, its subsidiaries or its affiliates."
2. AMENDMENT TO SECTION 7.b. Section 7.b. of the Agreement is amended
to delete the words "3 years" therefrom and substitute the words "2 years"
therefor.
3. AMENDMENT TO SECTION 7.e. Section 7.e. of the Agreement is amended
to delete the word "Executive" therefrom and substitute the word "Employee"
therefor.
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Except as amended herein, the Agreement shall remain in full force and
effect without change.
LEISURE TIME CASINOS & RESORTS, INC.
By: /s/
-------------------------------------
Xxxx X. Xxxxxxx, President
Attest:
/s/
-----------------------------------
Xxxxxx X. Xxxxx, Secretary
EMPLOYEE:
/s/
-----------------------------------------
R. Xxxxxx Xxxxxxx
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