EXHIBIT 10.12
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "AGREEMENT") is made and entered
into as of [_________], 1998, by and between [Xxxx Xxxxxx] [Xxxxxx X. Xxxxxx]
[Xxxxxxx X. Xxxxx] (the "EXECUTIVE") and Gaming Co., Inc., a Delaware
corporation ("GAMING CO.").
RECITALS
WHEREAS, concurrently with the execution of this Agreement, Gaming
Co., Hilton Hotels Corporation, a Delaware corporation ("HILTON"), Grand
Casinos, Inc., a Minnesota corporation ("COMPANY"), Gaming Acquisition
Corporation, a Minnesota corporation and a wholly-owned subsidiary of Gaming Co.
("MERGER SUB") and GCI Lakes, Inc., a Minnesota corporation and a wholly-owned
subsidiary of Company ("LAKES") have entered into an Agreement and Plan of
Merger, dated as of June 30, 1998 (as the same may be amended or modified from
time to time in accordance with the terms thereof, the "MERGER AGREEMENT"),
pursuant to which, upon the terms and subject to the conditions thereof, Merger
Sub will merge with and into Company, with Company as the surviving corporation
(the "MERGER");
WHEREAS, the parties hereto recognize that the Executive may have
certain expertise in the business conducted by Gaming Co., the skills to compete
in the gaming industry, and the economic resources to compete in such industry.
Therefore, the parties hereto agree a non-competition agreement is necessary,
prudent, and has been bargained for in respect to the Merger.
WHEREAS, as a condition and inducement to each of Hilton's and Gaming
Co.'s willingness to enter into the Merger Agreement, Hilton and Gaming Co. have
requested that the Executive enter into a non-compete agreement, upon the terms
and subject to the conditions hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants,
undertakings and obligations set forth herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. COVENANT. Except for matters expressly provided for in or
contemplated by this Agreement, the Executive hereby agrees that he will not,
without the prior written consent of Gaming Co., directly or indirectly engage
in any of the following actions on or before the date that is two years after
the Closing Date (as defined in the Merger Agreement):
(a) own any interest in, manage, operate, join, control, lend
money or render other financial assistance to, participate or
be connected with, as an officer, employee, partner,
stockholder, consultant or otherwise, any entity whose
products or services are offered in the State of Mississippi
and
could be considered part of the gaming industry; PROVIDED,
HOWEVER, that nothing in this Section 1 shall preclude the
Executive from holding less than five percent (5%) of the
outstanding capital stock of any corporation whose products or
services are offered in such states and could be considered
part of such industry and which is required to file periodic
reports with the U.S. Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, the securities of which corporation are listed on any
securities exchange, quoted on the National Association of
Securities Dealers Automated Quotation System or traded in the
over-the-counter market; or
(b) solicit for employment, endeavor to entice away from Gaming
Co. or any of its subsidiaries or affiliates or otherwise
interfere with the relationship of Gaming Co. or any of its
subsidiaries or affiliates with any person who is employed by,
or otherwise engaged to, perform services for Gaming Co. or
any of its subsidiaries or affiliates, whether for the
Executive's own account or for the account of any other
individual, partnership, firm, corporation or other business
entity.
Section 2. ENFORCEMENT. If the scope of the Executive's agreement under
Section 1 hereof is determined by any court of competent jurisdiction to be too
broad to permit the enforcement of all of the provisions of such section to
their fullest extent, then the provisions of Section 1 hereof shall be construed
(and each of the parties hereto hereby confirm that its intent is that such
provisions be so construed) to be enforceable to the fullest extent permitted by
applicable law. To the maximum extent permitted by applicable law, the
Executive hereby consents to the judicial modification of the provisions of
Section 1 hereof in any proceeding brought to enforce such provisions in such a
manner that renders such provisions enforceable to the maximum extent permitted
by applicable law.
Section 3. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be
deemed or construed by the parties hereto or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties hereto, it being understood and agreed that no provision contained
herein, and no act of the parties hereto, shall be deemed to create any
relationship between such parties other than the relationship set forth herein.
Section 4. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party hereto and any purported transfer without such
consent shall be void.
Section 5. HEADINGS. The section and paragraph headings and table of
contents contained herein are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
-2-
Section 6. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the validity of the
other provisions hereof, which shall continue in full force and effect.
Section 7. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARY RIGHTS.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns. Except as
specifically provided herein, this Agreement is for the sole and exclusive
benefit of the parties hereto and nothing herein is intended to give or shall
be construed to give to any person or entity other than the parties hereto
any rights or remedies hereunder.
Section 8. NOTICES. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by any party (or
other person referred to herein) shall be in writing and shall be deemed to be
given and effective (a) upon delivery if delivered in person or by courier,
(b) when sent by electronic transmission (telegraph, telex, telecopy or
facsimile transmission), receipt confirmed, (c) five days after being sent by
airmail, postage prepaid or (d) when receipt is acknowledged if mailed by
certified mail, postage prepaid, return receipt requested. The notice shall be
delivered to the addresses of each party hereto as follows, or to such other
persons or addresses as may be designated in writing by the party to receive
such notice:
(i) if to Gaming Co.:
Gaming Co., Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy to:
----------------------------------
----------------------------------
----------------------------------
Attn:
-----------------------------
Fax:
------------------------------
(ii) if to the Executive:
----------------------------------
----------------------------------
----------------------------------
Attn:
-----------------------------
Fax:
------------------------------
-3-
with a copy to:
----------------------------------
----------------------------------
----------------------------------
Attn:
-----------------------------
Fax:
------------------------------
Section 9. FURTHER ASSURANCES. Each of the parties hereto promptly shall
execute such documents and other instruments and take such further actions as
may be reasonably required or desirable to carry out the provisions hereof and
to consummate the transactions contemplated hereby.
Section 10. WAIVER OF CONDITIONS. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.
Section 11. GOVERNING LAW. This Agreement shall be deemed to be made in
and in all respects shall be interpreted, construed and governed by and in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws thereof.
Section 12. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties hereto, and supersede all prior written or
oral communications, relating to the subject matter covered by said agreements.
No amendment, modification, extension or failure to enforce any condition of
this Agreement by either party shall be deemed a waiver of any of its rights
herein.
Section 13. SURVIVAL. Obligations described in this Agreement shall
remain in full force and effect and shall survive the Closing Date.
Section 14. DISPUTE RESOLUTION. Any dispute arising under this Agreement
shall be resolved by binding arbitration in the manner contemplated by Section
9.14 of the Hilton Distribution Agreement (as defined in the Merger Agreement),
including Section 9.14(c) thereof regarding the parties' ability to seek
specific performance or injunctive relief thereof, and including the attorneys'
fees provisions referred to therein.
Section 15. SPECIFIC PERFORMANCE. The parties hereto agree that the
remedy at law for any breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any other appropriate relief or remedy. Such party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable laws, each party waives any
objection to the imposition of such relief.
-4-
Section 16. DEFAULT. In the event of a material default by either party
hereunder, the non-defaulting party shall be entitled to all remedies provided
by law or equity (including reasonable attorneys' fees and costs of suit
incurred).
Section 17. COUNTERPARTS. This Agreement and any amendments hereto may be
executed in two or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when two or more counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
[Signature Page to Follow]
-5-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
[Xxxx Xxxxxx] [Xxxxxx X. Xxxxxx]
[Xxxxxxx X. Xxxxx], an Individual
By:
------------------------------------
Name:
Gaming Co. Inc.,
a Delaware corporation
By:
------------------------------------
Name:
Title:
S-1
