Exhibit 10.2(b)
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 17th day of March, 2000, by and between
International Sports Wagering Inc., a Delaware corporation (the "Corporation"),
and Xxxxxxx Xxxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, the Corporation is in the business of developing, producing,
marketing, licensing and servicing computerized sports wagering and related
systems;
WHEREAS, the Corporation desires to employ Employee as its President
and Employee desires to serve the Corporation in such capacity;
WHEREAS, entering into this Agreement is a condition required by the
terms of certain License Agreements by and between the Corporation and each of
Global Interactive Gaming, Inc. and Prisma iVentures AG dated as of March 17,
2000 (collectively the "License Agreement"). (All terms defined in the License
Agreement that are used in this Agreement shall have the meanings ascribed to
them in the License Agreement.); and
WHEREAS, the Corporation desires to provide certain benefits to the
Employee upon termination of this Agreement, as herein provided.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions herein contained,
the Corporation hereby employs Employee as its President and Employee hereby
agrees to serve the Corporation in such capacity.
2. DUTIES.
2.1. Employee agrees, during the "Term" (as hereinafter defined), to
devote his full business attention and best efforts to the business of the
Corporation and to perform such duties of an executive and administrative nature
as the Chairman of the Board or Board of Directors of the Corporation, acting
reasonably, shall assign or direct (i) consistent with his status and position
as President including, without limitation, such duties as would typically be
performed by persons holding similar positions in other companies, and (ii) such
other duties of a managerial nature relating to operations, finance, personnel
or support.
2.2. Employee shall conduct himself at all times in a manner consistent
with his position with the Corporation.
3. TERM.
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3.1. The term of Employee's employment (the "Term") shall commence on
the date hereof, and shall terminate on June 30, 2003; provided that this
Agreement shall be subject to earlier termination only (i) in the event of
Employee's death; (ii) at the option of the Corporation, in the event of
Employee's "disability" (as hereinafter defined) for 90 consecutive working days
or an aggregate of 120 working days during any consecutive six month period
during the Term; (iii) for cause; or (vi) as provided in Sections 5.2 or 7.
3.2. For the purpose of this Agreement, "disability" shall mean any
injury or any physical or mental condition or illness which shall render
Employee unable to perform his duties in accordance with this Agreement.
4. COMPENSATION AND BENEFITS. As compensation for all services to be
rendered by Employee to the Corporation in all capacities, the Corporation shall
pay to Employee during the Term, a minimum of the following, payable in
accordance with the standard payroll practice of the Corporation:
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4.1. The Employee shall receive a base salary of not less than $200,000
per annum.
4.2. In addition, Employee shall be entitled to receive (a) such salary
increases, bonuses or other incentive compensation as may be approved by the
Board of Directors; (b) four weeks vacation during each year of the Term; (c)
such health insurance as the Corporation may from time to time provide to its
other executive employees; (d) such life insurance as the Corporation may
provide to its other executive employees; (e) such other fringe benefits as the
Corporation may provide to its employees; and (f) at the Corporation's expense,
the use of a leased automobile plus all expenses of operating such automobile,
including but not limited to insurance and maintenance costs.
5. REQUIRED RELOCATION.
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5.1. During the Term, the Corporation shall not require the Employee to
relocate outside of the New York City/New Jersey metropolitan area (the "Area").
5.2. In the event that prior to the end of the Term, or after the Term
of this Agreement if the Employee continues to be employed by the Corporation on
an at will basis, the Corporation requires the Employee to relocate outside the
Area and the Employee elects in his discretion, not to do so, the Employee may
voluntarily terminate his employment with the Corporation and in such event the
Corporation shall pay to the Employee (i) the base salary being paid to the
Employee at the date of termination until the end of the Term; (ii) all benefits
described in Sections 4.2 and 9; and (iii) the Severance Benefits described in
Section 6.
5.3. Notwithstanding the foregoing, the Employee may be required to
travel away from his home for reasonable periods of time in fulfillment of his
responsibilities for the Corporation.
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6. SEVERANCE BENEFITS.
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6.1. Upon expiration of the Term of this Agreement as provided in
Section 3.1, if a new agreement is not entered into by Employee and the
Corporation on the terms and conditions described in Section 7.1, or earlier
termination as a result of the death or disability of the Employee, or as
provided in Section 5.2, or as a result of a Change of Control, other than for
cause, the Corporation shall pay to the Employee (or the Employee's personal
representative if the Agreement is terminated as a result of the Employee's
death), the following severance benefits (collectively the "Severance Benefits")
for a period of one year after such termination:
(a) The base salary being paid to the Employee at the date of
termination, payable in accordance with the standard payroll practice
of the Corporation; and
(b) The benefits provided in Section 4.2(c), (d) if
applicable, (e) and (f), and Section 9. In addition, the Corporation
shall continue to provide the Employee with the benefits described in
Section 4.2(f) for the remainder of the term of the lease of the leased
automobile that was provided to the Employee on the date of termination
of this Agreement.
6.2. In the event that Employee has been employed by the Corporation
for a total of 10 years from the date on which his employment with the
Corporation commenced, whether such employment is pursuant to an agreement or on
an at-will basis, the Employee shall have the right, in his discretion, to
voluntarily retire from the Corporation and upon such retirement the Employee
shall be entitled to receive all of the Severance Benefits described in Section
6; provided that the Employee has given notice of his election to retire at
least one year before his retirement date.
7. NON-RENEWAL OF EMPLOYMENT AGREEMENT; DEATH OR DISABILITY.
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7.1. In the event that at the end of the Term of this Agreement, a new
employment agreement is not entered into on terms and conditions at least as
beneficial to the Employee as each of the terms and conditions contained herein,
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and the Employee's employment with the Corporation is terminated by the
Corporation, other than for cause, or by the Employee, in his discretion, the
Corporation shall pay to the Employee the Severance Benefits described in
Section 6 in accordance with the standard payroll practice of the Corporation.
7.2. In the event this Agreement is terminated as a result of the death
or disability of the Employee during the Term or, after the end of the Term
while the Employee is still employed by the Corporation on an at-will basis, the
Employee or his personal representative, as the case may be, shall be paid the
Severance Benefits described in Section 6.
8. CHANGE OF CONTROL.
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8.1. Notwithstanding any other provision of this Agreement, in the
event of a "Change of Control" (as hereafter defined), following which the
Employee's employment is terminated (a) by the Corporation other than as a
result of the death or disability of the Employee, or for cause, or (b) by the
Employee for "Good Reason" (as hereinafter defined) the Employee shall be
entitled to the following:
(a) If the termination is during the Term, the Employee shall
be entitled to continued payment of his base salary at the rate in
effect on the date of termination, and all benefits set forth in
Sections 4.2 and 9 until the end of the Term, and thereafter, the
Severance Benefits described in Section 6.
(b) If the termination occurs after the Term, while the
Employee is still employed by the Corporation on an at-will basis, the
Employee shall be entitled to the Severance Benefits described in
Section 6.
8.2. "Change of Control" shall mean, if any person, or any two or more
persons acting a "group" (as defined in the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), and all affiliates of such person or persons who
prior to such time "beneficially" owned (as defined in Rule 13d-3 under the
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Exchange Act less than 50% of the then outstanding Common Stock or Preferred
Stock of the Corporation, shall acquire additional shares of Common Stock or
Preferred Stock of the Corporation in one or more transactions or series of
transactions, such that following such transaction or transactions, such person
or group and affiliates beneficially own 50% or more of the Common Stock
outstanding or 50% or more of the voting power of the Corporation.
8.3. "Good Reason", when used with reference to a voluntary termination
by the Employee of his employment with the Corporation, shall mean:
(a) the assignment to the Employee of any duties inconsistent
in a material way with, or the reduction of powers or functions
associated with, his positions, duties, responsibilities and status
with the Corporation, Employee's reporting responsibilities or any
removal of the Employee from, or any failure to reelect the Employee
to, any significant positions or offices the Employee held immediately
prior to the time of the Change in Control, except in connection with
the termination of the Employee's employment by the Corporation for
cause or for death or disability;
(b) a reduction by the Corporation in the Employee's base
salary or benefits that existed immediately prior to the Change in
Control; or
(c) a change in the Employee's principal work location, except
for required travel on the Corporation's business to an extent
substantially consistent with the Employee's business travel
obligations immediately prior to the Change of Control;
provided, however, that no event shall constitute a Good Reason unless the
Employee notifies the Corporation that it has committed an action or inaction
specified in clauses (a) through (c) (a "Covered Action") and the Corporation
does not cure such Covered Action within 30 days after such notice, at which
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time such Good Reason shall be deemed to have arisen. Notwithstanding the
immediately preceding sentence, no action by the Corporation shall give rise to
Good Reason if it results from the Employee's termination for cause, or from the
Employee's resignation for other than a Good Reason. If the Employee has Good
Reason to resign, he may in fact resign for Good Reason by notice of termination
given within 60 days after the Good Reason arises.
9. REIMBURSEMENT OF EXPENSES. The Corporation shall reimburse the
Employee for all reasonable business expenses paid or incurred by him on behalf
of the Corporation, including, but not limited to, travel and entertainment
expenses, that he shall incur during the Term in connection with the performance
of his duties hereunder, provided that he submits, in a timely manner, receipts
or other expense records in such detail as may be required by the Corporation.
10. TERMINATION/STOCK OPTIONS. In the event that Employee's employment
with the Corporation terminates for any reason whatsoever, including death or
disability of the Employee, other than (i) by the Corporation for cause, (ii) or
voluntarily by the Employee (other than as permitted herein), all stock options
theretofore granted to the Employee which have not vested and become exercisable
on the date of such termination shall automatically vest and become exercisable
and remain exercisable in accordance with the terms of the Corporation's 1995
and 1996 Stock Option Plans and the stock option agreements thereunder.
11. NO CONFLICTING COMMITMENTS. Employee represents and warrants that
he has no commitments or obligations of any kind whatsoever inconsistent with
this Agreement which would impair, infringe upon or limit his ability to enter
into this Agreement or to perform the services required of him hereunder.
12. PROPRIETARY INFORMATION; NON-COMPETITION.
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12.1. Prior to the execution of this Employment Agreement, Employee
signed a Proprietary Information Agreement the terms of which shall continue in
full force and effect.
12.2. During the Term of this Agreement and until the later to occur of
(a) three years from the Effective Date of the License Agreement or (b) one year
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following the termination or nonrenewal of this Agreement, the Employee shall
not in any way compete with the business of the Corporation or the Licensee. In
furtherance thereof, during the period described in the preceding sentence, the
Employee shall not become a stockholder, director, employee, consultant, agent
or representative of any person, firm or entity whose business is competitive
with the business of the Corporation or the Licensee; provided that the
foregoing shall not preclude the Employee from owning less than 5% of the stock
or other securities of any person, firm or entity whose business is competitive
with the business of the Corporation or the Licensee.
13. ENTIRE AGREEMENT. This Agreement embodies the entire understanding
and agreement of the parties hereto in relation to the subject matter hereof,
and no promise, condition, representation or warranty, express or implied, not
herein set forth shall bind any party hereto. None of the terms or conditions of
this Agreement may be changed, modified, waived or cancelled orally or otherwise
except in a writing signed by both the parties hereto, specifying such change,
modification, waiver or cancellation. A waiver at any time of compliance with
any of the terms and conditions of this Agreement shall not be considered a
modification, cancellation or waiver of such terms and conditions of any
preceding or succeeding breach thereof unless expressly so stated. The
Employment Agreement dated as of July 1, 1998 is hereby terminated.
14. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and assigns.
15. GOVERNING LAW; FEES. This Agreement shall be governed by the
internal laws of the State of New Jersey without regard to principles of
conflicts of law. In the event of any litigation relating to the terms of this
Agreement, the prevailing party shall be awarded all of its fees and expenses in
pursuing or defending such litigation, including all reasonable legal fees and
expenses.
16. NOTICES. Any notice or other communication required or desired to
be given shall be in writing and shall be sent by registered or certified mail
return receipt requested or by express mail. Each such notice shall be deemed
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given at the time it is mailed in any post office maintained by the United
States to the following respective addresses, which either party may change as
to such party upon ten (10) days' notice to the other.
To the Corporation:
International Sports Wagering Inc.
000 Xxxxx Xxxxx Xxxx, Xxxxx 0X
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Chairman of the Board
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To Employee:
Xx. Xxxxxxx Xxxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxx, X.X. 00000
17. EXTRAORDINARY RELIEF. Employee acknowledges and agrees that
irreparable damage will result to the Corporation in the event of a breach of
the Proprietary Information Agreement or Section 12 of this Agreement.
Accordingly, Employee agrees that the Corporation shall be entitled to enforce
its rights under said Proprietary Information Agreement and Section 12 of this
Agreement, in the event of a breach or threatened breach thereof, in the court
of equity, and shall be entitled to a decree of specific performance or
appropriate injunctive relief. Such remedies shall be cumulative and not
exclusive and shall be in addition to any other rights or remedies available to
the Corporation.
18. INVALIDITY. Any provision of this Agreement found to be prohibited
by law shall be ineffective as written without invalidating the remainder of
this Agreement and shall be deemed amended to the fullest extent allowable by
applicable law to effectuate the purposes of said provision.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
INTERNATIONAL SPORTS WAGERING INC.
By: /s/
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Xxxxx Xxxxxx, Chairman of the Board
/s/
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Xxxxxxx Xxxxxxxx
