EMPLOYMENT AGREEMENT
Exhibit 10.1
This
Employment Agreement (this "Agreement") is entered into as of May
24, 2002, between Hard Rock Hotel, Inc., a Nevada corporation (the "Company"),
and Xxx Xxxxxxxxxx, an individual ("Executive").
Preliminary
Statements
A. The Company currently operates that certain hotel/casino resort known as the "Hard Rock Hotel" located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx.
B. The Company desires to employ Executive, and Executive desires to be so employed, on the terms and conditions herein contained.
Agreement
NOW, THEREFORE, in consideration of the various covenants and agreements hereinafter set forth, the parties hereto agree as follows:
1. Term of Employment. The Company hereby employs Executive and Executive accepts such employment commencing on the date of this Agreement (the "Commencement Date") and terminating on the first anniversary of the Commencement Date, unless sooner terminated as hereinafter provided; provided, however, that this Agreement may be extended for successive one (1) year terms upon the mutual agreement of the parties hereto.
2. Services
to be Rendered.
2.1. Duties of Executive. Executive shall be employed to serve in the capacity of President and General Manager of the Company. Executive shall be responsible for the overall supervision, direction, and control of the operations of the Hard Rock Hotel facility and shall direct the operating departments with a view to the successful implementation of the business policies and plans for the Hard Rock. Executive shall provide support in the conceptual, strategic, and policy formulation functions of the Company and shall direct and coordinate the activities of the Hard Rock to attempt to obtain optimum efficiency and economy of operations in order to maximize profits. Executive shall devote his full business time, attention and ability to the affairs of the Company during the term of this Agreement; provided, however, that Employee shall not be precluded from involvement in charitable or civic activities or his personal financial investments provided that the same do not interfere with his time and attention to the affairs of the Company. Executive will report directly to the Chairman of the Board of Directors ("Chairman") or such other person designated by the Chairman or Board of Directors of the Company (the "Board").
3. Compensation
and Benefits. The Company shall pay the following compensation and benefits
to Executive during the term hereof; and Executive shall accept the same as
payment in full for all services rendered by Executive to or for the benefit
of the Company:
3.1.
Base Salary. Commencing
on the Commencement Date, a base salary (the "Base Salary") of $375,000
per annum. The Base Salary shall accrue in equal bi-weekly installments in arrears
and shall be payable in accordance with the payroll practices of the Company
in effect from time to time.
3.2. Annual
Bonus. Executive shall be eligible to receive an annual bonus (the "Annual
Bonus") to be determined by the Chairman based upon the achievement of
the financial performance and other objectives of the Company and Executive’s
contribution to such performance.
3.3. Stock.
Executive shall be entitled to participate in any stock option or phantom equity
plans that the Company provides to its comparable senior executive officers
to the extent such plans are established by the Company.
3.4. Expenses.
The Company shall reimburse Executive for reasonable out-of-pocket expenses
incurred in connection with the performance of his duties hereunder, subject
to (i) such policies as the Board may from time to time establish and (ii) Executive
furnishing the Company with evidence in the form of receipts satisfactory to
the Company substantiating the claimed expenditures.
3.5. Vacation.
Executive shall be entitled to the number of paid vacation days in each calendar
year determined by the Company from time to time for its comparable senior executive
officers. Executive shall also be entitled to all paid holidays given to the
Company’s comparable senior executive officers.
3.6. Benefits.
Executive shall be entitled to participate in the Company’s group insurance,
hospitalization, and group health and benefit plans and all other benefits and
plans as the Company provides to its comparable senior executive officers to
the extent such plans are established by the Company and to the extent that
Executive is eligible to participate in such plans.
3.7. Withholding
and other Deductions. All compensation payable to Executive hereunder shall
be subject to such deductions as the Company is from time to time required to
make pursuant to law, governmental regulation or order.
4. Facilities.
Executive shall be furnished with an office, supplies and personnel which are
necessary or appropriate for the adequate performance by Executive of his duties
as set forth in this Agreement.
5. Representations
and Warranties of Executive. Executive represents and warrants to the Company
that (i) Executive is under no contractual or other restriction or obligation
which is inconsistent with the execution of this Agreement, the performance
of his duties hereunder, or the other rights of the Company hereunder and (ii)
Executive is under no physical or mental disability that would hinder the performance
of his duties under this Agreement.
6. Non-disclosure;
Non-solicitation. During the term of this Agreement and thereafter, Executive
shall hold in a fiduciary capacity for the benefit of the Company all secret
or confidential information, knowledge or data relating to the Company or its
affiliates, and their respective businesses, which shall not be public knowledge
(other than information which becomes public as a result of acts of Executive
or his representatives in violation of this Agreement), including, without limitation,
customer/ client lists, matters subject to litigation, and technology or financial
information of the Company or its subsidiaries, without the prior written consent
of the Company. In addition, during the term of this Agreement and for a two
(2) year period thereafter, Executive shall not, directly or indirectly, solicit
or contact any employee of the Company or any affiliate of the Company, with
a view to inducing or encouraging such employee to leave the employ of the Company
or its affiliates, for the purpose of being employed by Executive, an employer
affiliated with Executive or any competitor of the Company or any affiliate
thereof. Executive acknowledges that the provisions of this Article 6 are reasonable
and necessary for the protection of the Company and that the Company will be
irrevocably damaged if such provisions are not specifically enforced. Accordingly,
Executive agrees that, in addition to any other relief to which the Company
may be entitled in the form of actual or punitive damages, the Company shall
be entitled to seek and obtain injunctive relief from a court of competent jurisdiction
(without posting a bond therefor) for the purpose of restraining Executive from
any actual or threatened breach of such provisions.
7. Termination.
7.1. Death
or Total Disability of Executive. If Executive dies or becomes totally disabled
during the term of this Agreement, Executive’s employment hereunder shall
automatically terminate. For these purposes Executive shall be deemed totally
disabled if Executive shall become physically or mentally incapacitated or disabled
or otherwise unable fully to discharge Executive’s essential duties hereunder
for a period of ninety (90) consecutive calendar days or for one hundred twenty
(120) calendar days in any one hundred eighty (180) calendar-day period.
7.2.
Termination for Good Cause. Executive’s employment hereunder may be terminated
by the Company for "good cause." The term "good cause is defined
as any one or more of the following occurrences:
(a)
Executive’s breach of any of the covenants contained in Article 6 of this
Agreement;
(b)
Executive’s conviction by, or entry of a plea of guilty or nolo contendere
in, a court of competent and final jurisdiction for any crime involving moral
turpitude or punishable by imprisonment in the jurisdiction involved;
(c)
Executive’s commission of an act of criminal fraud that affects the Company,
whether prior to or subsequent to the date hereof upon the Company;
(d)
Executive’s continuing repeated willful failure or refusal to perform Executive’s
duties as required by this Agreement (including, without limitation, Executive’s
inability to perform Executive’s duties hereunder as a result of drug or
alcohol related misconduct and/or as a result of any failure to comply with
any laws, rules or regulations of any governmental entity with respect to Executive’s
employment by the Company);
(e)
Executive’s gross negligence, insubordination or material violation of
any duty or loyalty to the Company, misappropriation of Company assets, or any
other material misconduct on the part of Executive;
(f)
Executive’s commission of any act which is materially detrimental to the
Company’s business or goodwill;
(g)
the failure of Executive to obtain any requisite license, permit or approval
based on suitability from any state, county, or other governmental authority
having jurisdiction over the gaming operations of the Company (the "Gaming
Authorities") which would preclude Executive from carrying out his duties
as set forth in this Agreement;
(h) if, after
the initial receipt by Executive of any requisite license, permit or approval
from the Gaming Authorities, the execution of Executive’s duties as set
forth in this Agreement will, as evidenced by communications from any senior
official of any of the Gaming Authorities, materially preclude or unduly delay
the issuance of, or result in the imposition of unduly burdensome terms and
conditions on, or revocation of, any liquor, gaming or other license, permit
or approval, necessary or appropriate to the proposed, contemplated or actual
operations of the Company; provided, however, that this Section 7.2(h) shall
not be applicable if Executive shall, within a reasonable period of time after
receipt of written notice from the Board specifying the nature of the issues
involved hereunder, remedy the situation to the satisfaction of the applicable
Gaming Authorities; or
(i) Executive’s breach of any other provision of this Agreement, provided
that termination of Executive’s employment pursuant to this subsection
(i) shall not constitute valid termination for good cause unless Executive shall
have first received written notice from the Board stating with specificity the
nature of such breach and affording Executive at least fifteen (15) days to
correct the breach alleged.
7.3. Resignation of Executive. The Company shall have the right to terminate
this Agreement and Executive’s employment hereunder due to the voluntary
resignation of Executive, provided that Executive shall deliver no less than
sixty (60) days prior written notice of such resignation to the Board, which
notice may be waived by the Company in its sole discretion.
7.4. Severance
Compensation. Notwithstanding anything contained in this Agreement, upon a termination
of this Agreement and Executive’s employment hereunder due to the occurrence
of any of the events referred to in Section 7.1, 7.2 or 7.3 of this Agreement,
Executive (or Executive’s heirs or representatives) shall be entitled to
receive only such portion (if any) of the Base Salary as may theretofore have
accrued but be unpaid on the date on which the termination shall take effect.
7.5. Termination for No Cause. In addition to the right to terminate this Agreement
pursuant to Sections 7.1, 7.2 and 7.3 of this Agreement, the Company shall have
the right to terminate this Agreement and Executive’s employment hereunder
for any other reason or for no reason prior to the expiration of the term of
this Agreement. In the event that the Company terminates this Agreement and
Executive’s employment hereunder pursuant to this Section 7.5, the Company
shall give ten (10) days prior written notice to Executive and pay a termination
fee to Executive in an amount equal to the lesser of (i) one years Base Salary
or (ii) the remainder of the Base Salary which would otherwise be due Executive
pursuant to this Agreement but for such termination, to be paid in the manner
and at the rate Executive had received immediately prior to such termination
pursuant to Section 3.1 of this Agreement and the Company shall have no further
obligation to Executive under this Agreement.
7.6.
Termination Obligations of Executive. In the event that this Agreement and Executive’s
employment hereunder is terminated, Executive, or his legal representative in
case of termination by death or Executive’s physical or mental incapacity
to serve, shall:
(a)
by the close of the effective date of termination, resign from all corporate
positions held in the Company and any of its subsidiary and affiliated companies;
(b)
promptly return to a representative designated by the Company all property,
including but not limited to, keys, identification cards and credit cards of
the Company or any of its subsidiaries or affiliated companies; and
(c) incur
no further expenses or obligations on behalf of the Company, or any of its subsidiaries
and affiliated companies.
8. Change
of Control. In the event of a "Change of Control" (as defined below)
the Executive shall be entitled to one years Base Salary if within thirty (30)
days after the Change in Control the Executive tenders his resignation in conformity
with Article 7.3 of the Agreement. A Change in Control of the Company shall
mean a change in control of a nature that would be required to be reported in
response to Item 403(c) of Regulation S-K; provided that, without limitation,
such a change in control shall not be deemed to have occurred if Xxxxx Xxxxxx
is the beneficial owner as defined in Rule 13d-3 under the Exchange Act, directly
or indirectly, of securities of the Company representing 51% or more of the
combined voting power of the Company’s then outstanding securities.
9. Arbitration.
Any claim or controversy arising out of or relating to this Agreement shall
be settled by arbitration in Las Vegas. Nevada, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment on the
award rendered by the arbitrators may be entered in any court having jurisdiction.
There shall be three arbitrators, one to be chosen directly by each party at
will, and the third arbitrator to be selected by the two arbitrators so chosen.
Each party shall pay the fees of the arbitrator it selects and of its own attorneys,
the expenses of its witnesses and all other expenses connected with presenting
its case. Other costs of the arbitration, including the cost of any record or
transcripts of the arbitration, administrative fees, the fee of the third arbitrator,
and all other fees and costs, shall be borne equally by the parties hereto unless
it is determined that one or both parties were not acting in good faith in which
case the party determined to not have been acting in good faith shall bear all
fees and expenses described above which would otherwise have been paid by the
opposing party.
10. General
Relationship. Executive shall be considered an employee of the Company within
the meaning of all federal, state and local laws and regulations including,
but not limited to, laws and regulations governing unemploy-ment insurance,
workers’ compensation, industrial accident, labor and taxes.
11. General
Provisions.
11.1. Binding
Effect. This Agreement shall be binding upon and inure to the benefit of the
Company and its successors and assigns and Executive, his assignees, and his
estate. Neither Executive, his designees, nor his estate shall commute, pledge,
encumber, sell or otherwise dispose of the rights to receive the payments provided
in this Agreement, which payments and the rights thereto are expressly declared
to be nontransferable and nonassignable (except by death or otherwise by operation
of law).
11.2. Governing
Law. This Agreement shall be governed by the laws of the State of Nevada from
time to time in effect.
11.3. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one
and the same Agreement.
11.4. No Waiver.
Except as otherwise expressly set forth herein, no failure on the part of either
party hereto to exercise and no delay in exercising any right, power or remedy
hereunder shall operate as a waiver hereof nor shall any single or partial exercise
of any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
11.5. Headings.
The headings of the Articles and Sections of this Agreement have been inserted
for convenience of reference only and shall in no way restrict any of theterms
or provisions hereof.
11.6. Notices.
Any notice under this Agreement shall be given in writing and delivered in person
or mailed by certified or registered mail, addressed to the respective party
at the address as set out below, or at such other address as either party may
elect to provide in advance in writing, to the other party:
EXECUTIVE:
Xxx Xxxxxxxxxx
0000 Xxxxx Xxx Xxxxx
Xxx Xxxxx, XX 00000
COMPANY:
Hard Rock Hotel, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
WITH A COPY TO:
Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx, Esq.
11.7. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, or unenforceable by reason of any rule of law or public
policy, all other provisions of this Agreement shall nevertheless remain in
effect. No provision of this Agreement shall be deemed dependent on any other
provision unless so expressed herein.
11.8. Compliance
with Laws; Gaming Authorities Approval. Nothing contained in this Agreement
shall be construed to require the commencement of any act contrary to law, and
when there is any conflict between any provision of this Agreement and any statute,
law, ordinance, or regulation, contrary to which the parties have no legal right
to contract, then the latter shall prevail; but in such an event, the provisions
of this Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within the legal requirements. Notwithstanding anything
contained in this Agreement to the contrary, this Agreement and the terms and
conditions contained herein shall be contingent upon receipt of all requisite
approvals of the applicable Gaming Authorities.
11.9. No Waiver.
The several rights and remedies provided for in this Agreement shall be construed
as being cumulative, and no one of them shall be deemed to be exclusive of the
others or of any right or remedy allowed by law. No waiver by the Company or
Executive any failure of Executive or the Company, respectively, to keep or
perform any provision of this Agreement shall be deemed to be a waiver of any
preceding or succeeding breach of the same or other provision.
11.10. Merger.
This Agreement supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the employment of Executive by the
Company.
11.11. No
Representations. Each party to this Agreement acknowledges that no representations,
inducements, promises or other agreements, oral or otherwise, have been made
by any party, anyone acting on behalf of any party, which are not embodied herein
and that no other agreement, statement or promise not contained in this Agreement
shall be valid or binding. Any addendum to or modification of this Agreement
shall be effective only if it is in writing and signed by the parties to be
charged.
11.12. Drafting
Ambiguities. Each party to this Agreement has been afforded an opportunity to
have this Agreement reviewed by his or its respective counsel. The normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this Agreement
or of any amendments or exhibits to this Agreement.
11.13.
Survival. The terms and conditions of Article 6 and Section 10.6 of this Agreement
shall survive the termination of this Agreement.
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date hereinabove set forth.
| COMPANY: | EXECUTIVE: |
| Hard Rock
Hotel, Inc., a Nevada corporation |
|
| By: /s/ Xxxxx X. Xxxxxx | /s/ Xxx Xxxxxxxxxx |
| Xxxxx X. Xxxxxx, Chairman | Xxx Xxxxxxxxxx |
