EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of January 1,
2001 by and between Xxxxx X. Xxxxxxx of 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000 ("Executive") and Acres Gaming, Incorporated., a Nevada corporation, whose
principal place of business is located at 0000 Xxxxx, Xxxxx 000, Xxx Xxxxx, XX
00000 ("Employer").
RECITALS
WHEREAS, Employer is engaged in developing, manufacturing, and marketing
of electronic casino, accounting, game monitoring and game promotion systems;
and
WHEREAS Executive is willing to be employed by Employer and Employer is
willing to employ Executive on the terms, conditions and agreements hereinafter
set forth.
For the reasons set forth above, and in consideration of the mutual
promises and agreements hereinafter set forth, Employer and Executive hereby
agree as follows:
SECTION 1. EMPLOYMENT
1.1 EMPLOYMENT
Employer hereby employs Executive to render services as a full time
employee to Employer in the position of Chief Executive Officer under the terms
and conditions of this Agreement, and Executive hereby accepts such employment.
1.2 DUTIES
During the term of this Agreement, Executive shall perform faithfully
and to the best of Executive's ability management duties appropriate to the
Chief Executive Officer of a publicly traded company. In that role, Executive
shall perform such specific tasks as the Board of Directors (the "Board of
Directors") or the By-Laws of
Employer may prescribe. Executive shall report directly to the Board of
Directors. Executive shall not be required to perform services at a primary
location other than as provided herein, nor to accept material diminution of the
Duties set forth herein, nor to accept a title of lesser prestige or status;
such actions being treated at Executive's option as an event allowing a
termination by Employee for Good Reason.
1.3 ELECTION TO BOARD OF DIRECTORS
Executive further agrees to accept election and to serve during all or
any part of the term of this Agreement as a director of Employer and of any
subsidiary or affiliate, without any compensation other than that specified in
this Agreement, if elected to any such position by the shareholders or by the
Board of Directors of Employer or of any subsidiary or affiliate. Executive will
be a named insured on Employer's directors and officers liability insurance.
1.4 LOCATION OF POSITION
The duties to be performed by Executive shall be performed primarily at
Employer's office in Las Vegas, Nevada, subject to reasonable travel
requirements not to exceed three (3) consecutive weeks at any one time.
1.5 LIMITATION ON OUTSIDE ACTIVITIES
During the term of employment, Executive shall devote his energies,
interest, abilities and time as a full time employee to the performance of
obligations hereunder and shall not, without the written consent of the Board of
Directors, render to others any service for any kind of compensation and, in
addition, shall not engage in any activity which conflicts or interferes with
the performance of duties hereunder. Executive may serve on corporate, industry,
civic or charitable boards and committees and receive compensation therefor, so
long as it does not materially interfere with the performance of his Duties.
Nothing herein shall limit Executive's pursuit of hobbies and/or family and/or
personal investments in his spare or "free" time.
SECTION 2. TERM
The term of Executive's employment under this Agreement shall commence
effective January 1, 2001 and shall continue until June 30, 2005 unless earlier
terminated under the provisions of this Agreement (the "Term").
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SECTION 3. COMPENSATION
3.1 SALARY
Employer agrees to pay to Executive, during the Term, a salary at the
fixed rates per annum set forth below. Such salary shall be payable in periodic
installments, but no less frequently than monthly, in accordance with the
customary practices for other salaried employees of Employer. Amounts payable
shall be reduced by deductions or amounts to be withheld as required by
applicable state or federal laws and regulations and by deductions or amounts
authorized by Executive. Except as otherwise stated herein, Executive's right to
compensation shall terminate upon termination of this Agreement.
(a) The minimum base annual salary ("Base Salary") shall be as indicated
below:
Beginning January 1, 2001 $250,000.00
Beginning July 1, 2001 $275,000.00
Beginning July 1, 2002 $300,000.00
Beginning July 1, 2003 $300,000.00 plus merit
increases at the sole
discretion of the
Board of Directors.
3.2 BONUS
In addition to the Base Salary provided for above, Executive shall be
eligible for a bonus ("Bonus") for each fiscal year during the Term, which, if
earned, shall be earned on completion of the fiscal year and payable on or
before September 30 of each year with respect to the preceding fiscal year,
determined as set forth below.
Year Ended June 30, 2001
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For fiscal 2001, Executive's Bonus shall be an amount equal to $187,500
if Profits equal $3,085,500, $250,000 if Profits equal $4,114,000, and $375,000
if Profits equal or exceed $6,171,000. If Profits are less than $3,085,500, no
Bonus will be paid. For Profits within the limits set forth above, the amount of
Bonus will be scaled ratably.
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Years Ended June 30, 2002, 2003
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For each of fiscal 2002 and 2003, Executive's Target Bonus shall be an
amount equal to 60% of Base Salary for the year. Executive shall not be entitled
to any Bonus hereunder if Actual Profits are less than 75% of Plan Profits. If
Actual Profits equal 75% of Plan Profits, Executive shall be entitled to 75% of
the Target Bonus. If Actual Profits equal 150% or more of Plan Profits,
Executive shall be entitled to a maximum Bonus equal to 150% of the Target
Bonus. Bonus payments will be scaled ratably for performance within these
parameters.
For years beyond fiscal 2003, Executive and the Company will negotiate a
Bonus plan in good faith which in any case shall provide Target Bonus amounts at
least equal to the immediately preceding fiscal year. "Actual Profits" of
Employer shall mean Net Income before taxes as reported on the Company's
financial statements as adjusted to add back any bonus paid pursuant to this
Section 3.2. In the case of a full fiscal year, Actual Profits shall be
determined using the Company's audited financial statements for such year. "Plan
Profits" of Employer shall mean Net Income before taxes in the business plan
adopted by the Board of Directors for the applicable fiscal year.
3.3 EXPENSE REIMBURSEMENT
Executive is expected, from time to time, to incur expenses for
promoting and conducting the business of Employer, including entertainment,
travel, and similar items. Employer shall reimburse Executive for out-of-pocket
expenses actually and reasonably incurred by him in the promotion and conduct of
the business of Employer.
3.4 OTHER BENEFITS
Executive shall be entitled to and shall receive all other benefits and
conditions of employment that Employer may provide for him, or for its employees
generally. Executive may forgo participation in the Employer's group health
insurance plan in which case Executive will be reimbursed, including gross-up
for income taxes, by Employer for health insurance amounts paid by Executive,
provided that such reimbursement will not exceed the amount Employer would incur
if Executive participated in Employer's plan.
3.5 VACATION
Executive shall be entitled to five weeks paid vacation per annum.
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3.6 COUNTRY CLUB
Employer shall reimburse Executive up to $50,000.00 for country club
membership and dues not to exceed $500 per month.
3.7 LICENSING
Employer shall pay for all fees and costs arising from or related to
Executive's licensure or suitability determination by all governmental agencies
and bodies in all jurisdictions.
3.8 ATTORNEY'S FEE
Employer shall reimburse Executive for legal fees up to $2,752.50
incurred in the review, negotiation and drafting of this Agreement.
3.9 ANNUAL PHYSICAL
Employer shall reimburse Executive for the costs of an annual physical
examination up to $2,500 each fiscal year.
4.0 DISABILITY INSURANCE
Employer shall provide disability insurance for Executive that continues
60% of Executive's salary to Executive's 65th birthday provided, that the cost
to Employer shall not exceed the amount Employer would have paid for coverage
under Employer's standard disability plan (the current limit of which is $6,000
per month) by more than $6,000 per year.
4.1 LIMITATIONS
The provisions of this agreement relating to compensation to be paid to
Executive shall be subject to and limited by any applicable provision of law or
regulation which may from time to time restrict or limit compensation to be paid
hereunder.
SECTION 4. FACILITIES AND EXPENSES/ADDITIONAL BENEFITS
Employer shall provide Executive with an office, secretarial and
technical help, and such other facilities and services as may be suitable to his
position and adequate for the performance of his duties.
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SECTION 5. TRADE SECRETS/COVENANT NOT TO COMPETE
(a) For purposes of this Agreement, the term "Confidential Information"
means any and all information not generally known by others with whom Employer
does or plans to do business or with whom Employer directly or indirectly
competes and includes, but is not limited to, information relating to Employer's
research and development activities, its inventions, discoveries, findings,
designs and ideas, products and services, sales and marketing, manufacturing
processes and methods, costs, sources of supply, customer lists, profits and
profit margins, pricing policies or methods, personnel information and business
relationships, intellectual property and the filing or pendency of patent
applications. Confidential information also includes information comparable to
the foregoing that Employer may receive or has received belonging to customers,
suppliers, consultants and others who do business with Employer. Executive shall
not, either during or after the Term of this Agreement, disclose to any person
or organization other than Employer or its affiliates, or utilize for the
benefit or profit of Executive or any other person or organization other than
Employer or its affiliates, any Confidential Information. Executive shall not
keep elsewhere than on Employer premises, nor remove therefrom, any property of
Employer or its affiliates, except and only so long as may be required for the
performance of Executive's duties for Employer. In the event of termination of
Executive's employment with Employer, Executive shall immediately return to
Employer any property of Employer or its affiliates in Executive's possession,
under Executive's control or removed by Executive from Employer's premises.
(b) Executive will not, during his employment hereunder, (i) be engaged
or interested in any manner, directly or indirectly, as a partner, officer,
director, stockholder (ownership of up to 5% of the outstanding shares of any
publicly held company excepted), advisor, employee or in any other capacity, in
any other activity, business, or entity which is competitive with the then
existing business of Employer or any subsidiary or (ii) directly or indirectly
solicit or entice or in any way divert any employee, customer or supplier of
Employer or any subsidiary away therefrom.
(c) Executive acknowledges that the provisions of this Section 5 are
essential to Employer; that Employer would not enter into this Agreement if it
did not include covenants not to disclose confidential information, compete with
Employer or any affiliated entities thereof, or solicit customers of Employer or
any such affiliated entities; and that damages sustained by Employer as a result
of a breach of any of these covenants cannot be adequately remedied by damages,
and Executive agrees that Employer, in addition to any other remedy it may have
under this Agreement or at law, shall be entitled to injunctive and other
equitable relief to prevent or curtail any breach of any provision of this
Section 5.
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SECTION 6. INTELLECTUAL PROPERTY
(a) "Intellectual Property" means and shall include, but not be limited
to, inventions, findings, ideas, improvements, designs, discoveries (whether or
not patentable and whether or not reduced to practice), copyrights, and
copyrightable material, Confidential Information and know-how, made or conceived
by Executive (whether made solely by Executive or jointly with others) during
the term and within the scope of Executive's employment with Employer which
directly relate to the actual or demonstrably anticipated business of Employer
or its affiliates or which are suggested by or result from any task assigned to
Executive on behalf of Employer or which Executive created at Company
facilities. "Intellectual Property" does not mean and shall not include
Executive Property (as defined in Section 6(c) below).
(b) All Intellectual Property and any patent, patent application,
trademark or trademark registration, copyright or copyright registration or
record resulting therefrom shall be the exclusive property of Employer of, its
designee.
(c) The following shall be the property of Executive and not of Employer
("Executive Property"):
any tangible or intangible property developed in whole or in part by
Executive for which no equipment, supplies, facility, Intellectual
Property nor Confidential Information of Employer was used and which was
developed entirely on Executive's own time and which does not directly
relate to the actual or demonstrably anticipated business of Employer,
and which does not result from any work performed by Executive for
Employer.
SECTION 7. DISCLOSURE OF INTELLECTUAL PROPERTY
Executive shall reasonably promptly disclose to Employer or its designee
and keep adequate records relating to any Intellectual Property which is
conceived, discovered or made by Executive, either solely or jointly with
others, during the Term and in the scope of Executive's employment with
Employer.
SECTION 8. ASSIGNMENT OF INTELLECTUAL PROPERTY
(a) Executive agrees to assign to Employer Executive's entire world-wide
right, title and interest in and to any Intellectual Property heretofore
developed or developed during the Term.
(b) Executive further agrees to make all lawful oaths and declarations
and to execute documentation requested by Employer at any lime during or after
Executive's
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employment with Employer, including an assignment for each item of Intellectual
property that Employer may request and on such forms as Employer may provide. If
Executive is unable or unwilling to execute such forms of assignment and/or
documents relating to such assignment, Executive agrees and hereby grants to
Employer an irrevocable limited power of attorney to execute such forms or
documents on Executive's behalf.
(c) Executive further agrees to assist Employer during and, so long as
it does not interfere with his then current employment, subsequent to
Executive's employment with Employer in every lawful way including but not
limited to testifying and/or otherwise supporting Employer in the obtaining
and/or enforcement of its Intellectual Property, without reimbursement other
than normal compensation as an employee of Employer, or, if Executive's
employment with Employer has been terminated, at mutually agreed upon times and
for compensation at the rate of $3000 per day plus expenses, to obtain for the
benefit of Employer patents, trademarks, copyrights, design protection and
similar legal protections of Intellectual Property in any and all countries,
irrespective of whether Executive believes such Intellectual Property to be
patentable, subject to trademark protection, copyrightable or otherwise
protectable.
SECTION 9. EXECUTIVE'S OBLIGATIONS AFTER TERMINATION OF THIS AGREEMENT
Except as set forth in the next sentence, all of Executive's duties,
obligations and liabilities end with the termination of this Agreement. Sections
5, 6, 7, 8 and 9 shall survive the termination of Executive's employment with
Employer and the expiration of the term of this Agreement.
SECTION 10. TERMINATION
Executive or Employer may terminate Executive's employment at any time
upon thirty days' written notice. In the event of termination of Executive's
employment, all compensation and benefits set forth in this Agreement shall
terminate except as specifically provided in this Section 10. No termination of
employment under this Section 10 shall affect the provisions of Section 5. Upon
any termination, in addition to the provisions below, Executive, or his estate,
shall be entitled to: immediate reimbursement of expenses, timely payment of
earned but yet unpaid Base Salary and Bonus, and all benefits available, allowed
or due under all Company plans and programs in which he participates.
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10.1 TERMINATION FOR CAUSE
Employer's Board of Directors shall have the right, immediately and
without notice, to terminate Executive's employment hereunder for "Cause." (as
defined in Section 10.6) If Executive's employment is terminated for Cause,
Executive shall not be entitled to receive any Bonus in respect of the fiscal
year in which termination occurs.
10.2 TERMINATION FOR DEATH OR DISABILITY
In the event of Executive's death or Disability (defined below) during
the Term, the Term shall terminate immediately and without notice and the
Executive or his estate shall be entitled to receive a deemed earned Bonus which
shall be a percentage of that year's Target Bonus based on the Actual Profits
through the month of Executive's death or Disability annualized and then
compared to that year's Plan Profits, and the proceeds of any life insurance
held by the Company or whose premiums are paid by the Company of which Executive
is the beneficiary.
10.3 DISABILITY DEFINED
"Disability" shall mean a physical or mental incapacity that prevents
the Executive from performing the essential functions of his position with the
Company for a period of ninety (90) days as determined (a) in accordance with
any long-term disability plan of which the Executive is a member, or (b) by the
following procedure: The Executive agrees to submit to medical examinations by a
licensed healthcare professional selected by the Company, in its sole
discretion, to determine whether a Disability exists. In addition, the Executive
may submit to the Company documentation of a Disability, or lack thereof, from a
licensed healthcare professional of his choice. Following a determination of a
Disability or lack of Disability by the Company's or the Executive's licensed
healthcare professional, the other party may submit subsequent documentation
relating to the existence of a Disability from a licensed healthcare
professional selected by such other party. In the event that the medical
opinions of such licensed healthcare professionals conflict, such licensed
healthcare professionals shall appoint a third licensed healthcare professional
to examine the Executive, and the opinion of such third licensed healthcare
professional shall be dispositive.
10.4 OTHER TERMINATION
In the event Executive's employment is terminated: i) by Employer for
any reason other than for Cause, death or Disability, or ii) by Executive upon
30 days notice after a Company Transaction, or iii) by the Executive for Good
Reason,
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Executive shall be entitled to a termination payment equal to 160 percent of his
then current Base Salary.
10.5 CAUSE
Wherever reference is made in this Agreement to termination being for or
with or without Cause, "Cause" shall include the occurrence of one or more of
the following events:
(a) Willful and continued failure or refusal to carry out the lawful
duties of Executive described in Section 1 hereof or any lawful directions of
the Board of Directors of Employer, which directions are reasonably consistent
with the Duties, with such failure or refusal continuing for a period of at
least 30 days after written notice to Executive thereof;
(b) Conviction of or entering a plea of guilty or no contest to a
violation by Executive of a state or federal criminal law involving the
commission of a crime against Employer, its employees or a felony (other than a
felony related solely to the operation of a motor vehicle);
(c) Chronic use by Executive of alcohol or illegal drugs or abuse by
Executive of prescription drugs, in each case that materially interferes with
Executive's performance of the Duties, with such use continuing for a period of
at least 30 days after written notice to Executive thereof; fraud,
misrepresentation or dishonesty by Executive that has a material adverse effect
on Employer's business, operations or financial condition; any incident
materially compromising Executive's ability to represent Employer with the
public; or any act or omission by Executive which substantially impairs
Employer's business, good will or reputation;
(d) Action against Executive by a gaming regulatory authority which
impairs his ability to perform his duties under this Agreement; or
(e) Any other material violation of any provision of this Agreement,
with such violation continuing for a period of at least 30 days after written
notice to Executive thereof.
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10.6 GOOD REASON
Wherever reference is made in this Agreement to termination being with
or without Good Reason, "Good Reason" shall include the occurrence, without
Executive's written consent, of one or more of the following events:
(a) The assignment to Executive by Employer of duties materially
inconsistent with his status as the Chief Executive Officer of Employer, or
other action by Employer which results in a material diminution of his
authority, title or duties with Employer or any other breach of a duty of
Employer as set forth in paragraph 1 (excluding for this purpose any action not
taken in bad faith and which is remedied by Employer promptly after receipt of
notice thereof given by Executive);
(b) The failure by Employer to promptly pay Executive any installment or
portion of his compensation from Employer when earned and due (excluding for
this purpose any inadvertent action not taken in bad faith and which is remedied
by Employer promptly after receipt of notice thereof given by Executive); or
(c) Any material violation of any provision of this Agreement, with such
violation continuing for a period of at least 30 days after written notice to
Employer thereof.
10.7 NO DUTY TO MITIGATE
In the event of any termination of employment under this Section 10, the
Executive shall be under no obligation to seek other employment, and there shall
be no offset against amounts due the Executive under this Agreement on account
of any remuneration attributable to any subsequent employment that the Executive
may obtain. In the event of a termination of this Agreement, neither party shall
publish in any way or make any negative comment or statement concerning the
reasons for such termination or about the other party. The provisions of this
Section 10.8 shall survive the expiration or earlier termination of this
Agreement.
SECTION 11. RESTRICTED STOCK
Effective March 12, 2001 Executive was granted 300,000 shares of common
stock of Employer (the "Restricted Shares"); 150,000 of those shares vest June
30, 2003 and 150,000 shares vest June 30, 2005. The Company will file a
registration statement under the Securities Act of 1933 with respect to the
Restricted Shares on or before November 1, 2001. Under certain circumstances
vesting will be accelerated as set forth below:
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11.1 TERMINATION OF EMPLOYMENT
If Executive's employment is terminated by the Company other than for
Cause, or is terminated, by reason of death or Disability, Executive shall be
entitled to immediate vesting of a prorated portion of the Restricted Shares. If
such termination occurs before June 30, 2003, the prorated portion of Restricted
Shares will be 150,000 shares times a percentage equal to the number of days
from July 1, 2000 through the date of Employee's termination divided by the
total number of days from July 1, 2000 to June 30, 2003. If such termination
occurs on or after June 30, 2003 the first 150,000 shares will have fully
vested, and the prorated portion of Restricted Shares will be the remaining
150,000 unvested shares times a percentage equal to the number of days from July
1, 2003 through the date of such termination divided by the total number of days
from July 1, 2003 to June 30, 2005.
11.2 COMPANY TRANSACTION
In the event: ( i) a "Company Transaction" (as defined below) occurs, or
ii) Executive is terminated without Cause and a Company Transaction with respect
to which negotiations had commenced prior to the date of termination is
announced, negotiated or entered into within 120 days of that termination, or
iii) Executive terminates his employment for Good Reason, all unvested
Restricted Shares shall vest immediately.
"Company Transaction" means:
(a) consummation of either (i) a merger or consolidation of the Company
with or into any other company, entity or person or (ii) a sale, lease, exchange
or other transfer in one transaction or a series of related transactions of all
or substantially all the Company's then outstanding securities or all or
substantially all the Company's assets (defined as those assets that accounted
for more than 50% of the Company's EBITDA); or
(b) within 24 months of any person or group becoming the beneficial
owner, directly or indirectly, of securities representing 30% or more of the
combined voting power of the Company, the individuals who immediately prior to
the event constituted the Board of Directors, cease for any reason to constitute
a majority of the directors; provided, however, that a Company Transaction shall
not include a Related Party Transaction.
"Related Party Transaction" means
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(a) a merger or consolidation of the Company in which the holders of the
outstanding voting securities of the Company immediately prior to the merger or
consolidation hold, directly or indirectly, at least a majority of the
outstanding voting securities of the Successor Company immediately after the
merger or consolidation;
(b) a sale, lease, exchange or other transfer of the Company's assets to
a majority-owned subsidiary company;
(c) a transaction undertaken for the principal purpose of restructuring
the capital of the Company, including, but not limited to, reincorporating the
Company in a different jurisdiction or creating a holding company, but only if
the beneficial ownership remains unchanged; or
(d) a corporate dissolution or liquidation.
SECTION 12. ENTIRE AGREEMENT
This Agreement contains the complete agreement concerning the employment
arrangement between the parties and shall, as of the effective date hereof,
supersede all other prior agreements between the parties with respect to the
subject matter hereof. Neither party has relied on any prior representations in
entering into this Agreement.
SECTION 13. MODIFICATION OF CONTRACT
No cancellation, waiver, amendment, alteration o modification of this
Agreement or of any covenant, condition, or limitation herein contained shall be
valid unless in writing and duly executed by the party to be charged therewith.
No failure on the part of Employer to exercise, and no delay in exercising, any
right, power, privilege or remedy granted herein shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power,
privilege or remedy preclude any other or further exercise thereof or the
exercise of any other right. Unless otherwise stated in writing, no waiver of
any breach of any provisions of this Agreement shall be, or be construed to be,
a waiver of any preceding or succeeding breach of the same or any other
provision. The parties further agree that the provisions of this Section may not
be waived or amended except as set forth in this Section and that any oral or
implied agreement which conflicts with any of the foregoing shall be void,
unenforceable and of no force and effect.
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SECTION 14. SEVERABILITY OF TERMS
If any term or provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
terms, covenants, conditions and provisions of this Agreement shall nevertheless
remain in full force and effect, provided that the invalidity, illegality or
unenforceability of such term or provision does not materially impair either (i)
the parties' ability to consummate their respective duties with respect to, or
(ii) the economic substance of, the employment relationship established hereby.
If the invalidity, illegal or unenforceability of any term or other provision
materially impairs either (i) a party's ability to consummate its duties
hereunder in the manner contemplated hereby, or ii) the economic substance of
the employment relationship, the parties shall, if at all possible, amend this
Agreement so as to effect the original intention of the parties to the fullest
extent otherwise possible.
SECTION 15. ASSIGNMENT
The parties agree that the services covered by this Agreement are
strictly personal and that this Agreement is not assignable or transferable by
Executive or Employer, either voluntarily or by operation of law, without the
prior written consent of the other party.
SECTION 16. NOTICES
All notices, requests, approvals, demands or other communication of any
kind which any party may be required or may desire to serve on the other in
connection with this Agreement shall be in writing and shall be deemed to have
been sufficiently given if addressed to the parties at their respective
addresses designated below and:
(a) personally delivered with proof of delivery thereof (any notice so
delivered shall be deemed to have been received at the time so delivered);
(b) sent by Federal Express (or other similar overnight courier)
designating next day delivery (any notice so delivered shall be deemed to have
been received on the next business day following receipt by the courier);
(c) sent by United States registered or certified mail, return receipt
requested, postage prepaid (any notice so sent shall be deemed to have been
received three (3) business days after mailing in the United States); or
(d) sent by telecopier or facsimile machine which automatically
generates a transmission report that states the date and time of the
transmission, the length of the
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document transmitted and the telephone number of the recipient's telecopier or
facsimile machine (with a copy thereof sent in accordance with subparagraphs
(a), (b) or (c) above) (any notice so delivered shall be deemed to have been
received (i) on the date of transmission, if so transmitted before 5:30 p.m.
(local time of the recipient) on a business day, or (ii) on the next business
day, if so transmitted on a day other than a business day).
All notices shall be addressed to the parties at the addresses set forth
below. Either party may, by notice given pursuant to this Section, change the
person or persons and/or address or addresses, or designate an additional person
or persons or an address or addresses, for its notices, but notice of a change
of address shall only be effective upon receipt as set forth above.
If to Employer:
Acres Gaming, Incorporated
0000 Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attn: Chief Operating Officer
If to Executive:
Xxxxx X. Xxxxxxx
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
SECTION 17. JURISDICTION/ATTORNEY'S FEES
If legal action or arbitration is initiated relative to this Agreement
or the rights or obligations of any party hereunder, the parties hereto
stipulate and agree that such action must be initiated, maintained and continued
in Nevada. The non prevailing party in such action shall pay the reasonable
attorneys' fees of the prevailing party, with the amounts to be determined by
the court, or the arbitrators, in said action.
SECTION 18. CAPTIONS
Captions of the Sections of this Agreement are for the convenience of
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation, construction or meaning
of the provisions of this Agreement.
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SECTION 19. CUMULATIVE RIGHTS
The rights and remedies provided herein are cumulative and not exclusive
of any other rights or remedies which Employer or Executive shall otherwise have
at law or equity.
SECTION 20. CHOICE OF LAW
It is the intention of the parties hereto that this Agreement and the
performance hereunder and all 'suits and special proceedings hereunder be
governed by and construed in accordance with and pursuant to the laws of the
State of Nevada.
SECTION 21. JURISDICTION; SERVICE OF PROCESS
Subject to Section 21 below, any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement must be
brought in either the courts of the State of Nevada, County of Xxxxx, or the
United States District Court for the District of Nevada, and each of the parties
consents to the exclusive jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
THE UNDERSIGNED EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THE FOREGOING
AGREEMENT AND FULLY UNDERSTANDS THE MEANING AND CONSEQUENCES OF THE TERMS
CONTAINED HEREIN. THE UNDERSIGNED EXECUTIVE FURTHER ACKNOWLEDGES THAT, TO THE
EXTENT DEEMED APPROPRIATE, HE HAS EMPLOYED AND CONSULTED WITH HIS OWN COUNSEL
CONCERNING THIS AGREEMENT AND, HAVING CONSIDERED SUCH LEGAL ADVICE, HE HAS
EXECUTED IT AS HIS FREE AND VOLUNTARY ACT AND DEED.
SECTION 21. ARBITRATION
(a) ARBITRABLE CLAIMS. Other than disputes specifically excluded in this
Section 21, all disputes between the Executive (and his attorneys, successors
and assigns) and the Company (and its trustees, beneficiaries, officers,
directors, managers, affiliates, employees, agents, successors, attorneys and
assigns) relating in any manner whatsoever to the employment or termination of
employment of the Executive, including, without limitation, all disputes arising
under this Agreement ("Arbitrable Claims"), shall be resolved by binding
arbitration pursuant to this Section 21 (the "Mutual Arbitration Agreement").
Arbitrable Claims shall include, but are not
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limited to, claims for compensation, claims for breach of any contract or
covenant (express or implied), and tort claims of all kinds, as well as all
claims based on any federal, state or local law, statute or regulation, but
shall not include the claims based on the statutes enumerated in Section 21(d)
hereof or the Company's right to seek injunctive relief as provided in Section
20 hereof. Arbitration shall be final and binding upon the parties and shall be
the exclusive remedy for all Arbitrable Claims. THE PARTIES HEREBY WAIVE ANY
RIGHTS THEY MAY HAVE TO TRIAL BY JUDGE OR JURY IN REGARD TO ARBITRABLE CLAIMS,
EXCEPT AS PROVIDED BY SECTION 21(d) HEREOF.
(b) PROCEDURE. Arbitration of Arbitrable Claims shall be in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association, as amended, and as augmented in this
Agreement. Either party may bring an action in court to compel arbitration under
this Agreement and to enforce an arbitration award. Otherwise, neither party
shall initiate or prosecute any lawsuit, appeal or administrative action in any
way related to an Arbitrable Claim. The initiating party must file and serve an
arbitration claim within sixty (60) days of learning the facts giving rise to
the alleged claim. All arbitration hearings under this Agreement shall be
conducted in Las Vegas, Nevada. The Nevada Uniform Arbitration Act shall govern
the interpretation and enforcement of this Agreement. Each party shall bear its
own attorneys' fees and costs incurred in any such arbitration proceeding, and
the fees of the arbitrator shall be divided equally between the parties.
(c) CONFIDENTIALITY. All proceedings and all documents prepared in
connection with any Arbitrable Claim shall be confidential and, unless otherwise
required by law, the content and subject matter thereof shall not be disclosed
to any persons other than the parties to the proceedings, their counsel,
witnesses and experts, the arbitrator, and, if involved, the court and court
staff.
(d) APPLICABILITY. This Section 21 shall apply to all disputes under
this Agreement other than (a) disputes relating to the enforcement of the
Company's rights under Sections 5,6,7 and 8 of this Agreement, and (b) claims
brought under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1866, the Age Discrimination in Employment Act of 1967 (including the Older
Workers Benefit Protection Act), the Americans With Disabilities Act, the Fair
Labor Standards Act, the Equal Pay Act, the Family and Medical Leave Act, the
Employee Retirement Income Security Act of 1974, the Nevada Fair Employment
Practices Act, any applicable state's Human Rights Act or any other applicable
state or local fair employment law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date above written.
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EXECUTIVE EMPLOYER
Acres Gaming Incorporated, a Nevada
corporation
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------- ------------------------
Xxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Its: President
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