EXHIBIT 10.13
AGREEMENT
THIS AGREEMENT is entered into this 5th day of February, 1997 by and
between SPINTEK GAMING TECHNOLOGIES, INC., a California
corporation (the "Corporation"), and XXXX X. XXXXXXX, a resident of
Nevada, and XXXXXX X. XXXXXXX, a resident of Nevada (singularly, the
"Executive" or collectively, the "Executives").
WHEREAS, the Executives entered into Employment Agreements with
the Corporation dated April 1, 1996 and November 15, 1995, respectively, and
subsequently amended October 18, 1996, to perform certain services therefor
(the "Employment Agreement"), copies of which are attached hereto as Exhibit
"A"'
WHEREAS, the Executives are concerned about the present financial
condition of the Corporation and its ability to conduct operations throughout
calendar year 1997;
WHEREAS, the Executives are claiming, and the Corporation
acknowledges, that a scrivener's error occurred in redrafting the Employment
Agreement dated October 18, 1996;
WHEREAS, the Corporation desires to (i) continue Executives in the
employment of the Corporation, (ii) provide Executives with certain payment
and (iii) correct the scrivener's error existing in paragraph 4 of the
Employment Agreement;
WHEREAS, the Corporation acknowledges that Executives provide
crucial and valuable services to the Corporation, the loss of which would be
injurious to the Corporation;
WHEREAS, the Corporation acknowledges that Executives have or
could have other business opportunities available to them that they are
foregoing in order to provide their continued services to the Corporation;
WHEREAS, the Corporation acknowledges that it would be difficult to
replace the Executives, and the services they provide, under the present
circumstances; and
WHEREAS, the Corporation and Executives have agreed to execute
this Agreement in order to accomplish each of the foregoing items on the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. The parties each acknowledge to the other that the Corporation
and the Executives did enter into an Employment Agreement dated April 1,
1996 and November 15, 1995, respectively, and subsequently amended October
18, 1996, and said Employment Agreements, as amended, are still in full force
and effect as of the execution of this Agreement and that none of the parties
hereto are in default or breach of the Employment Agreement.
2. (A) Upon the execution of this Agreement by all of the
parties hereto the
Corporation shall pay to each Executive the sum of SIXTY THOUSAND AND
NO/100 DOLLARS ($60,000.00) payable as follows:
(1)The sum of THIRTY THOUSAND AND NO/I
00 DOLLARS ($30,000.00) shall be paid to each Executive in cash before
February 7, 1997 (the "First Payment");
(2)The sum of SIXTY THOUSAND AND NO/100
DOLLARS ($60,000.00) shall be placed in a disbursement account immediately
upon the execution of this Agreement by all of the parties hereto pursuant to
the Disbursement Agreement attached hereto as Exhibit "B", to be applied by the
Disbursement Agent (as defined in the Disbursement Agreement) in accordance
with the terms of the Disbursement Agreement. From and after execution of
this Agreement and the Disbursement Agreement, the funds held in the
disbursement account will be owned by the Executives subject to the ten-ns and
conditions of the Disbursement Agreement.
(B)(1) Notwithstanding anything to the contrary in
subparagraph (A) (1) above, if the Executive (i) voluntarily terminates
employment with the Corporation (other than as a result of a Change of Control
as defined in the Employment Agreement) on or before March 1, 1997, then the
Executive agrees to repay the First Payment to the Corporation, immediately
upon such voluntary termination less any withholding deducted therefrom and
less any severance amount owedto
the Executive by the Corporation or agreed to between the Corporation and the
Executive, (ii) is terminated by the Corporation due to a Change of Control (as
defined in the Executive's Employment Agreement) prior to October 1, 1997,
then that First Payment shall be applied against and reduce the amount of any
severance compensation due under the terms of the Executive's Employment
Agreement, or (iii) is still employed by the Corporation between October 1,
1997 and until December 31, 1997, then the Executive hereby agrees that the
First Payment shall be offset on a pro rata basis against the Executive's
compensation to which he is otherwise entitled under the terms of his
Employment Agreement during the period between October 1, 1997 and
December 31, 1997. In the event Executive terminates his employment with the
Company or the Company terminates Executive after March 1, 1997 and prior
to December 31, 1997 then the First Payment shall automatically vest to the
Executive and shall not be considered as salary, either past or present, or
offset against any salary, severance or termination owed or to be owed to
Executive.
(2) Notwithstanding anything to the contrary in
subparagraph (B) (1) above, the First Payment shall automatically vest to the
Executive and shall not be considered salary, either present or past, or offset
against any salary, severance or termination owed or to be owed to the
Executive whether on said date or accruing thereafter, if the Executive is still
employed by the Corporation at anytime after the execution of this Agreement
and the Corporation should (i) have five (5) or less full time employees, (ii)
make an assignment for the benefit of creditors, (iii) files or is subject to a
petition in bankruptcy, whether voluntary or involuntary, or (iv) have a
receiver or trustee appointed with respect to a substantial amount of the
Corporation's property.
3. In order to correct the aforementioned scrivener's error, each
party hereto agrees that the Employment Agreement shall be modified as set
forth in Exhibit "C" hereof. The Corporation and the Executive do each
acknowledge and agree that the purpose of the revision set forth therein is
solely to correct a scrivener's error occurring in the previously executed
Employment Agreement.
4. This Agreement, the documents referred to herein, and the
Exhibits attached hereto contains the entire agreement between the parties
relating to the subject matter hereof, and no representation, statement or
promise made by the Corporation, or its agent, that is not contained in this
Agreement shall be valid or binding. This Agreement shall inure to the benefit
to the Corporation, and its successors and assigns, and shall be binding upon
the Executives and their assigns, heirs, executors and representatives. This
Agreement may not be amended or modified except in a writing signed by the
parties hereto. This Agreement may be signed in one or more counterparts,
each of which will constitute an original.
5. All communications provided for hereunder shall be in writing
and shall be deemed to be given when delivered in person or when deposited in
the U.S. Mail, first class, certified or registered, with proper postage prepaid
and addressed as follows:
If to the Corporation:
Spintek Gaming Technologies, Inc.
Attention:Xxxxxxx X. Xxxxxxxxx V, Director
000 Xxxx 00xx
Xxxx Xxxxx, Xxxxxxx 00000
If to the Executives:
Xxxx X. Xxxxxxx, Esq.
000 Xxxxxxx Xxxxx Xxxxx, Xx. 000
Xxxxxxxxx, Xxxxxx 00000
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
IN WITNESS WHEREOF, the parties hereto have set their hands
and affixed their seals as of the date and year first above written.
"CORPORATION" "EXECUTIVES"
SPINTEK GAMING TECHNOLOGIES,
INC., a California Corporation
By: /s/ XXXXXXX X. XXXXXXXXX, V /s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
Its: Secretary/Director
/s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
EXHIBIT "A-1"
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 18th day of October
1996 by and between Spintek Gaming Technologies, Inc., a California
corporation (the "Corporation"), and Xxxx X. Xxxxxxx, (the "Executive") with
reference to the following facts:
WHEREAS, the Corporation hired Executive in the position of Chief
Operating Officer of the Corporation on April 1, 1996; and
WHEREAS, there have been significant changes in the Corporation,
both in management and in purpose, since Executive's employment; and
WHEREAS, the Corporation now desires to hire Executive as its Chief
Executive Officer;
WHEREAS, in order to retain the services of the Executive as Chief
Executive Officer and to maximize the period of his continued availability, the
Corporation desires to enter into this Employment Agreement with Executive
as is more fully set forth herein.
NOW, THEREFORE, on the basis of the foregoing facts and in
consideration of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:
1. Employment
The Corporation hereby agrees to, and does hereby, employ the
Executive and Executive hereby accepts employment with the Corporation as
Chairman of the Board of Directors and Chief Executive Officer on the terms
and conditions set forth in this Agreement (the "Agreement").
2. Term
The Employment of the Executive hereunder shall commence on
October 18, 1996 and shall continue for a period of two (2) years until October
17, 1998 (the "Term"). After the original Term, this Agreement shall continue
in effect and shall be deemed automatically renewed for a second Term unless
either party hereto shall notify the other in writing at least thirty (30) days
prior to the end of the Term of their intention of not renewing the same. The
Corporation agrees not to terminate the Executive during the Term except for
Cause. Executive shall be considered terminated, at the Executive's election,
if (i) there is a Change of Control of the Corporation or (ii) a reduction in
Executive's duties, title, salary or position with the Corporation.
3. Duties and Services
A. The Corporation and the Executive hereby agree that, subject
to the provisions of this Agreement, the Corporation will employ the Executive
and the Executive will serve the Corporation as Chairman and Chief Executive
Officer during the Term or any extension thereof.
B. Executive agrees during the term of this Agreement not to usurp
a corporate opportunity for his own financial gain. A corporate opportunity
shall be defined as a business opportunity which the corporation is financially
able to undertake, is, from its nature, in the line of the Corporation's
business and is one in which the Corporation has an interest or a reasonable
expectancy. Executive agrees that he shall offer a corporate opportunity to the
Corporation. The Corporation shall have ten (10) days to either take the
opportunity for itself or to reject the opportunity in which case Executive
shall have the right to pursue such opportunity for himself. Failure to notify
Executive within such ten (10) day period shall be deemed a rejection of the
opportunity by the Corporation.
4. Definitions The following terms shall have the following
meanings when used herein
A. Change of Control
A Change of Control shall be deemed to have occurred at such time as:
(1) any person (other than the Corporation, any
Subsidiary of the Corporation or any employee benefit plan of the Corporation)
("Person") is or becomes the beneficial owner, directly or indirectly, through a
purchase, merger or other acquisition or transaction or series of transactions,
of shares of capital stock, whether presently issued or issued in the future, of
the Corporation entitling such Person to exercise forty (40%) percent or more of
the total voting power of all shares of capital stock of the Corporation
entitled to vote generally in the election of directors; or;
(2) any consolidation of the Corporation with, or merger
of the Corporation into, any other Person, any merger of another Person into
the Corporation (other than a merger (x) which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock or (y) which is effected solely to change the jurisdiction of
incorporation of the Corporation and results in a reclassification, conversion
or exchange of outstanding shares of Common Stock into solely shares of
Common Stock); or
(3) a change of Board of Directors of the Corporation in
which the individuals who constituted the Board of Directors of the Corporation
as of October 18, 1996 cease for any reason to constitute a majority of the
directors then in office.
B. Cause
Cause shall exist when and only when Executive (i) after written
notification by the Board of Directors or the CEO has willfully failed and
continues to fail to substantially perform his duties (other than failure
resulting from incapacity due to physical or mental illness), (ii) is convicted
of a crime constituting a felony, or (iii) has been proven to be dishonest, has
embezzled or has committed common law fraud.
5. Compensation.
A. As salary during the Term, the Corporation shall pay the
Executive, in accordance with its normal payroll, a minimum salary as follows:
(1)One Hundred Twenty Thousand Dollars ($120,000) per
year from date through December 31, 1996;
(2)One Hundred Thirty-two Thousand Dollars ($132,000)
per year from January 1, 1997 through December 31, 1997; and
(3)One Hundred Fifty Thousand Dollars ($150,000) from
January 1, 1998 through October 17, 1998;
provided, however, such salary is to be paid no less than bimonthly during the
Term. The Executive shall receive such additional salary as the Board of
Directors of the Corporation may from time to time determine during the Term.
Unless expressly agreed in writing by the parties hereto, no such additional
compensation or benefits shall be deemed to modify or otherwise affect the
terms or conditions of this Agreement. Notwithstanding the foregoing if
Executive is terminated other than (1) for Cause, as defined herein, or (2) as a
result of a Change of Control, as defined herein, Executive shall be entitled to
two (2) years salary (based upon his annual salary at the time of termination)
as severance. Such payment shall serve as Executive's sole and exclusive rights
pursuant to this Agreement, provided; however, such payment shall not affect
Executive's rights as to options to purchase shares in accordance with paragraph
7 hereof In the event of a Change of Control, Executive shall be entitled to two
(2) years salary, as severance, provided Executive exercises his right pursuant
to this Agreement to treat such change of control as a termination of this
Agreement. In the event Executive resigns, except as a result of a Change of
Control, Executive shall be entitled to no further remuneration or benefits
pursuant to this Agreement. In the event Executive is terminated other than for
cause or their is a Change in Control all obligations to pay Executive shall be
due and owed in a lump sum payment exactly thirty days from the earlier of (i)
the date of termination, (ii) the date of the Change of Control and/or; (iii)
the date Executive elects termination pursuant to the provisions of Paragraph 2
hereof.
B. Executive shall receive an automobile for his use while in Las
Vegas and the use of a Corporate Apartment having a minimum of two
bedrooms.
C. The Corporation shall pay Executive additional compensation,
based upon sales of its M.A.N.A.G.E.R.S. Systems ("Systems"), the following
sums: 1. Upon sale of the first 10,000 Systems $10,000; 2. Upon sale of the
second 10,000 Systems the sum of $20,000; and 3. Upon the sale of the third
10,000 System's the sum of $30,000. All such additional compensation shall be
earned when the sale is made as evidenced by purchase orders and shall be paid
within thirty days of Corporation's receipt of payment for sales aggregating the
various numbers of Systems set forth above.
D. Executive shall be entitled to two (2) round trip tourist class
tickets per month for nonbusiness travel from Las Vegas/Atlanta for Executive
or his nominee.
E. Executive shall also be provided with a life insurance policy on
his life of not less than the greater of (i) $150,000, (ii) his then current
annual salary, or (iii) his total salary package for the immediately preceding
calendar year taking into consideration all bonuses and benefits paid to or
provided for Executive.
6. Other Benefits
During the Term the Executive shall receive all rights and benefits for
which he is then eligible under any employee benefit plan or bonus plan which
the Corporation generally provides for its employees. Such benefits shall
include, but not be limited to, a bonus plan, which shall be explicitly set
forth by the Corporation's Board of Directors within ninety (90) days of the
execution of this Agreement, and full medical and health insurance for
Executive. In no event shall the bonus be less than the largest bonus (based on
percentage of salary) received by any member of the executive management team
other than the Chief Executive Officer of the Corporation and employees directly
employed in Sales and Marketing Division of Corporation.
7. Grant of Options to Acquire Stock
Corporation acknowledges that it currently has plans to adopt a
qualified stock option plan at the next annual meeting of shareholders and that
Executive will be covered under such plan. Further, Corporation guarantees
Executive will receive, whether such stock option plan is adopted or not, a
minimum of 100,000 options to acquire common shares of the Corporation for
each twelve (12) month period for which Executive is employed by
Corporation, that such options will vest subject only to the passage of time,
and that the exercise price will not be in excess of the closing price of the
publicly traded shares on the last day of any such twelve month period. The
parties further agree that a mutually satisfactory Agreement shall be entered
into between Corporation and Executive no later than thirty (30) days from the
date of the next annual meeting of Shareholders.
8. Death or Disability
In the event of the death of the Executive or the disability of the
Executive, this Agreement shall immediately terminate and the Corporation shall
pay to the Executive or his estate one (i) years salary in a single lump sum
payment which payment shall be due and payable upon the sooner of (i) thirty
(30) days of Executive's death or (ii) thirty (30) days after Executive is
declared by his physician incapable of performing his duties as specified in
this Agreement. The Corporation shall have the right to fund Executive's death
and/or disability benefit through insurance other than the insurance required by
Paragraph 5(d) hereof.
9. Place of Performance
In connection with his employment by the Corporation during the
Term, the Executive shall at all times be entitled to an office at the principal
executive offices of the Corporation, located in Las Vegas, Nevada, or at such
other office of the Corporation, in Las Vegas, Nevada, as the Chief Executive
Officer of the Corporation shall, in his reasonable discretion deem to be in the
best interest of the Corporation. In the event the Corporation moves its
principal place of business outside of Las Vegas, Nevada, other than at the
direction of executive, Executive at his option shall have the right to
terminate this Agreement and receive the greater of such salary due him for the
remaining Term of this Agreement but in no event less than twelve (12) months
salary.
10. Notice
All Notices and other communications hereunder shall be in writing
and shall be deemed to have been validly served, given or delivered five (5)
days after deposit in the United States mail, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
after delivery to any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be notified as follows:
If to Corporation at: Spintek Gaming Technologies, Inc.
000 Xxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx, 00000
Attn: Chairman
Facsimile #: 000-000-0000
If to Executive at: Xxxx X. Xxxxxxx
000 Xxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx 000000
Facsimile #: 000-000-0000
The parties may from time to time and at any time supplement or
change the addresses herein by given Notice hereunder to the other party
hereto.
11. Miscellaneous
A. This Agreement shall inure to the benefit of and be binding
upon the Corporation, its successors and assigns. This Agreement may not be
assigned by the Corporation without the prior written consent of the Executive.
The obligations and duties of the Executive hereunder shall be personal and not
assignable.
B. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be valid and effective under applicable
law, but if any provision of this Agreement is found to be prohibited or invalid
under applicable law, such provision will be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
C. For purposes of this Agreement an "affiliate" of a person
shall include any person, firm, corporation, association, organization, or
unincorporated trade or business that, now or hereinafter directly or
indirectly, controls, or is controlled by, or practices is under common control
with such person.
D. Any waiver, alteration or modification of any terms of this
Agreement will be valid only if made in writing and signed by the parties
hereto. Each party hereto from time to time may waive any of his or its rights
hereunder without effecting a waiver with respect to any subsequent occurrences
or transactions hereunder.
E. Captions and paragraph heading used herein are for convenience only
are not a part hereof and shall not be used in construing this Agreement.
F. This Agreement constitutes the entire understanding and
agreement of the parties and, except as otherwise provided hereunder, there are
no other agreements or understandings, written or oral, in effect between the
parties relating to the employment of the Executive by the Corporation during
the Term. All prior negotiations or agreements, if any, between the parties
relating solely to the employment of the Executive by the Corporation during
the Term are hereby superseded.
G. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Nevada.
H. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but both of which taken together shall
constitute one and the same instrument.
12. Arbitration
Any controversy between the parties hereto, including the
construction or application of any of the terms, covenants or conditions of this
Agreement, shall on written request of one party served on the other be settled
exclusively by arbitration in accordance with the rules of the American
Arbitration Association then in effect. The arbitrator selected must be a
member of the National Academy of Arbitrators and must have significant
experience in arbitrating labor disputes. Further, the Arbitrator must be an
attorney practicing labor law in the Southern California area. The cost of such
arbitration shall be borne by the losing party or in such proportions as the
Arbitrator(s) shall decide. Judgment may be entered on the arbitrator's award
in any court of competent jurisdiction.
13. The Executive's Employment
Nothing contained in this Agreement (i) obligates the Corporation or
any subsidiary of the Corporation to employ the Executive in any capacity
whatsoever, or (ii) prohibits or restricts the corporation (or any such
subsidiary) from terminating the employment, if any, of the Executive at any
time or for any reason whatsoever, with or without cause, subject to the terms
and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
Executive
/s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
Spintek Gaming Technologies, Inc.
By: /s/ XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx, Chairman
By:/s/ XXXXXXX X. XXXXXXXXX V
Xxxxxxx X. Xxxxxxxxx V
Assistant Secretary
EXHIBIT "A-2"
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into this 18th day of
October 1996 by and between Spintek Gaming Technologies, Inc., a California
corporation (the "Corporation"), and Xxxxxx X. Xxxxxxx, (the "Executive")
with reference to the following facts:
WHEREAS, the Corporation hired Executive in the position of Chief
Financial Officer of the Corporation on November 15, 1995; and
WHEREAS, there have been significant changes in the Corporation,
both in management and in purpose, since Executive's employment; and
WHEREAS, in order to retain the services of the Executive and to
maximize the period of his continued availability, the Corporation desires to
enter into a new Employment Agreement with Executive as is more fully set
forth herein.
NOW, THEREFORE, on the basis of the foregoing facts and in
consideration of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:
1. Employment
The Corporation hereby agrees to, and does hereby, employ the
Executive and Executive hereby accepts employment with the Corporation on
the terms and conditions set forth in this Agreement (the "Agreement").
2. Term
The Employment of the Executive hereunder shall commence on
October 18, 1996 and shall continue for a period of two (2) years until October
17, 1998 (the "Term"). After the original Term, this Agreement shall continue
in effect and shall be deemed automatically renewed for a second Term unless
either party hereto shall notify the other in writing at least thirty (30) days
prior to the end of the Term of their intention of not renewing the same. The
Corporation agrees not to terminate the Executive during the Term except for
Cause. Executive shall be considered terminated, at the Executive's election,
if (i) there is a Change of Control of the Corporation or (ii) a reduction in
Executive's duties, salary or position with the Corporation.
3. Duties and Services
A. The Corporation and the Executive hereby agree that, subject to
the provisions of this Agreement, the Corporation will employ the Executive
and the Executive will serve the Corporation as Chief Financial Officer during
the Term.
B. Executive agrees during the term of this Agreement not to usurp
a corporate opportunity for his own financial gain. A corporate opportunity
shall be defined as a business opportunity which the corporation is financially
able to undertake, is, from its nature, in the line of the Corporation's
business and is one in which the Corporation has an interest or a reasonable
expectancy. Executive agrees that he shall offer a corporate opportunity to the
Corporation. The Corporation shall have ten (10) days to either take the
opportunity for itself or to reject the opportunity in which case Executive
shall have the right to pursue such opportunity for himself. Failure to notify
Executive within such ten (10) day period shall be deemed a rejection of the
opportunity by the Corporation.
4. Definitions The following terms shall have the following
meanings when used herein:
A. Change of Control
A Change of Control shall be deemed to have occurred at such time as:
(a) any person (other than the Corporation, any
Subsidiary of the Corporation or any employee benefit plan of the Corporation)
("Person") is or becomes the beneficial owner, directly or indirectly, through a
purchase, merger or other acquisition or transaction or series of transactions,
of shares of capital stock, whether presently issued or issued in the future, of
the Corporation entitling such Person to exercise forty (40%) percent or more of
the total voting power of all shares of capital stock of the Corporation
entitled to vote generally in the election of directors; or;
(b) any consolidation of the Corporation with, or merger
of the Corporation into, any other Person, any merger of another Person into
the Corporation (other than a merger (x) which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock or (y) which is effected solely to change the jurisdiction of
incorporation of the Corporation and results in a reclassification, conversion
or exchange of outstanding shares of Common Stock into solely shares of
Common Stock); or
(c) a change of Board of Directors of the Corporation in
which the individuals who constituted the Board of Directors of the Corporation
as of October 18, 1996 cease for any reason to constitute a majority of the
directors then in office.
B. Cause
Cause shall exist when and only when Executive (i) after receipt of
written notification by the Board of Directors or the CEO has willfully failed
and continues to fail to substantially perform his duties (other than failure
resulting from incapacity due to physical or mental illness), (ii) is convicted
of a crime constituting a felony, or (iii) has been proven to be dishonest, has
embezzled or has committed common law fraud ("for Cause").
5. Compensation
A. As salary during the Term, the Corporation shall pay the
Executive, in accordance with its normal payroll, a minimum annual salary of
One Hundred Twenty Thousand Dollars ($120,000) such salary to be paid no
less than bi-monthly during the Term. The Executive shall receive such
additional salary as the Board of Directors of the Corporation may from time
to time determine during the Term. Unless expressly agreed in writing by the
parties hereto, no such additional compensation or benefits shall be deemed to
modify or otherwise affect the terms or conditions of this Agreement.
Notwithstanding the foregoing if Executive is terminated other than (1) for
Cause, as defined herein, or (2) as a result of a Change of Control, as defined
herein, Executive shall be entitled to twelve (12) months salary as severance as
Executive's sole and exclusive rights pursuant to this Agreement. In the event
of a Change of Control, Executive shall be entitled to two (2) years salary, as
severance, provided Executive exercises his right pursuant to Agreement to
treat such change of control as a termination of this Agreement. In the event
Executive is terminated other than for cause or there is a Change in Control,
all obligations to pay Executive shall be due and owed in a lump sum payment
exactly thirty (30) days from the earlier of the date of termination, the date
of the Change of Control and/or the date Executive elects termination pursuant
to the provisions of Paragraph 2 hereof.
B. Executive shall receive an automobile and living
allowance in the amount of Seven Hundred Fifty Dollars ($750) per month
during the Term.
C. The Corporation shall purchase a country club
membership at the Tournament Players Course located in Xxxxxxxxx after the
sale of Thirty Thousand (30,000) of the Corporation's M.A.N.A.G.E.R.S.
Systems. Such country club membership shall be held in the name of the
Corporation for the benefit of Executive in his capacity as an executive with
the Corporation. Upon any termination of Executive's employment the country
club membership described in this paragraph shall be transferred to Executive.
6. Other Benefits
During the Term the Executive shall receive all rights and benefits for
which he is then eligible under any employee benefit plan or bonus plan which
the Corporation generally provides for its employees. Such benefits shall
include, but not be limited to, a bonus plan, which shall be explicitly set
forth by the Corporation's Board of Directors within ninety (90) days of the
execution of this Agreement, and full medical and health insurance for
Executive. In no event shall the bonus be less than the largest bonus (based on
percentage of salary) received by any member of the executive management team
other than the Chief Executive Officer of the Corporation and employees directly
employed in Sales and Marketing Division of Corporation.
7. Grant of Options to Acquire Stock
Corporation acknowledges that it currently has plans to adopt a
qualified stock option plan at the next annual meeting of shareholders and that
Executive will be covered under such plan. Further, Corporation guarantees
Executive will receive, whether such stock option plan is adopted or not, a
minimum of 50,000 options in addition to any options to acquire common
shares of the Corporation for each twelve (12) month period for which
Executive is employed by Corporation, that such options will vest subject only
to the passage of time, and that the exercise price will not be in excess of the
closing price of the publicly traded shares on the last day of any such twelve
month period. The parties further agree that a mutually satisfactory agreement
shall be entered into between Corporation and Executive no later than thirty
(30) days from the date of the next annual meeting of Shareholders.
8. Death or Disability
In the event of the death of the Executive or the disability of the
Executive, this Agreement shall immediately terminate and the Corporation shall
pay to the Executive or his estate one (1) years salary in a single lump sum
payment which payment shall be due and payable upon the sooner of (i) thirty
(30) days of Executive's death or (ii) thirty (30) days after Executive is
declared by his physican incapable of performing his duties as specified in this
Agreement. The Corporation shall have the right to fund Executive's death
and/or disability benefit through life insurance.
9. Place of Performance
In connection with his employment by the Corporation during the
Term, the Executive shall at all times be entitled to an office at the principal
executive offices of the Corporation, located in Las Vegas, Nevada, or at such
other office of the Corporation, in Las Vegas, Nevada, as the Chief Executive
Officer of the Corporation shall, in his reasonable discretion deem to be in the
best interest of the Corporation. In the event the Corporation moves its
principal place of business outside of Las Vegas, Nevada, Executive at his
option shall have the right to terminate this Agreement and receive the greater
of such salary due him for the remaining Term of this Agreement but in no event
less than twelve (12) months salary.
10. Notice
All Notices and other communications hereunder shall be in writing
and shall be deemed to have been validly served, given or delivered five (5)
days after deposit in the United States mail, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
after delivery to any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be notified as follows:
If to Corporation at: Spintek Gaming Technologies, Inc.
000 Xxxxx Xxxxx, Xxxxx X
Xxx Xxxxx, Xxxxxx, 00000
Attn: Chairman
Facsimile #: 000-000-0000
If to Executive at: Xxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Facsimile #: 000-000-0000
11. Miscellaneous
A. This Agreement shall inure to the benefit of and be binding
upon the Corporation, its successors and assigns. This Agreement may not be
assigned by the Corporation without the prior written consent of the Executive.
The obligations and duties of the Executive hereunder shall be personal and not
assignable.
B. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be valid and effective under applicable
law, but if any provision of this Agreement is found to be prohibited or invalid
under applicable law, such provision will be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
C. For purposes of this Agreement an "affiliate" of a person
shall include any person, firm, corporation, association, organization, or
unincorporated trade or business that, now or hereinafter directly or
indirectly, controls, or is controlled by, or practices is under common control
with such person.
D. Any waiver, alteration or modification of any terms of this
Agreement will be valid only if made in writing and signed by the parties
hereto. Each party hereto from time to time may waive any of his or its rights
hereunder without effecting a waiver with respect to any subsequent occurrences
or transactions hereunder.
E. Captions and paragraph heading used herein are for
convenience only are not a part hereof and shall not be used in construing this
Agreement.
F. This Agreement constitutes the entire understanding and
agreement of the parties and, except as otherwise provided hereunder, there are
no other agreements or understandings, written or oral, in effect between the
parties relating to the employment of the Executive by the
Corporation during the Term. All prior negotiations or agreements, if any,
between the parties relating solely to the employment of the Executive by the
Corporation during the Term are hereby superseded.
G. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Nevada.
H. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but both of which taken together shall
constitute one and the same instrument.
12. Arbitration
Any controversy between the parties hereto, including the construction
or application of any of the terms, covenants or conditions of this Agreement,
shall on written request of one party served on the other be settled exclusively
by arbitration in accordance with the rules of the American Arbitration
Association then in effect. The arbitrator selected must be a member of the
National Academy of Arbitrators and must have significant experience in
arbitrating labor disputes. Further, the Arbitrator must be an attorney
practicing labor law in the Southern California area. The cost of such
arbitration shall be borne by the losing party or in such proportions as the
Arbitrator(s) shall decide. Judgment may be entered on the arbitrator's award
in any court of competent jurisdiction.
13. The Executive's Employment
Nothing contained in this Agreement (i) obligates the Corporation or
any subsidiary of the Corporation to employ the Executive in any capacity
whatsoever, or (ii) prohibits or restricts the corporation (or any such
subsidiary) from terminating the employment, if any, of the Executive at any
time or for any reason whatsoever, with or without cause, subject to the terms
and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
Executive
/s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
Spintek Gaming Technologies, Inc.
By: /s/ XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx, Chairman
By:/s/ XXXXXXX X. XXXXXXXXX V
Xxxxxxx X. Xxxxxxxxx V
Assistant Secretary
EXHIBIT "B"
DISBURSEMENT AGREEMENT
THIS DISBURSEMENT AGREEMENT is entered into this 5th day of
February, 1997 between Spintek Gaining Technologies, Inc., a California
corporation (the "Corporation"), and Xxxx X. Xxxxxxx, a resident of Nevada, and
Xxxxxx X. Xxxxxxx, a resident of Nevada (singularly, the "Executive", or
collectively, the "Executives"), and Xxxxxxx Xxxx or its successors, a
professional association (the "Payment Agent'), nominated by the Corporation
and the Executive to serve as the Payment Agent pursuant to the agreement
dated February 5th, 1997.
WHEREAS, the Corporation and the Executives have entered into an
Agreement contemporaneously herewith for the revision to certain terms of the
Employment Agreement, as amended, of each Executive (the "Agreement")-,
and
WHEREAS, the Corporation and the Executives have agreed that the
Corporation shall deposit certain funds in an account to be held by the Payment
Agent pursuant to the terms herein.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, and payments contained herein, the parties hereto, intending to be
legally bound, agree as follows:
1. Establishment of Disbursement-Fund. The Payment Agent
acknowledges upon signing this Disbursement Agreement, that it has received
from the Corporation the sum of SIXTY THOUSAND AND NO/100
DOLLARS ($60,000.00) in the aggregate, and that such sum together with any
income or interest earned thereon is hereinafter referred to as the
"Disbursement Fund". The Disbursement Fund is to be allocated among the
Executives as THIRTY THOUSAND AND NO/100 DOLLARS ($30,000.00) each (the
"Individual Payment Accounts" collectively and "Disbursement Account-
Xxxxxxx" and "Disbursement Account-Xxxxxxx" individually). The
Disbursement Fund and the Individual Payment Accounts shall be held by the
Payment Agent subject to the terms and conditions hereinafter set forth.
2. Disbursement Fund. Payment Agent shall immediately place the
Disbursement Fund in an interest-bearing bank account. Any interest earned on
the Disbursement Fund shall be netted against any expenses of the account. The
net interest earnings shall be divided equally between the Individual
Disbursement Accounts and added thereto. Any deficit on expenses shall be
billed monthly to the Corporation and shall be the sole responsibility and
liability of the Corporation-
3. Disbursements. The Payment Agent shall distribute the Individual
Disbursement Accounts to the Executives, prior to the termination of this
Disbursement Agreement as provided in paragraph 5 below, or if there is a
Change in Control of the Corporation as defined in paragraph 4 below.
4. Change of Control. For purposes of this Disbursement Agreement,
"Change of Control" shall be deemed to have occurred at such time as:
(1) any person or an affiliated group of persons, other than
the Corporation or any employee benefit plans of the Corporation, ("Person")
is or becomes the beneficial owner, directly or indirectly, through a purchase,
merger or other acquisition or other transaction or series of transactions, of
shares of capital stock, whether presently issued or issued in the future, of
the Corporation entitling such Person to exercise forty percent (40%) or more of
the total voting power of all shares of capital stock of the Corporation
entitled to vote generally in the election of directors; or
(2) any consolidation of the Corporation with, or merger of
the Corporation into, any other Person, any merger of another Person into the
Corporation (other than a merger which (a) does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
common stock, or (b) is effected solely to change the jurisdiction of the
incorporation of the common stock and results in a reclassification, conversion
or exchange of outstanding shares of common stock into solely shares of
common stock); or
(3) a change in the composition of the Board of Directors of
the Corporation in which the individuals who constituted the Board of Directors
of the Corporation as of October 18, 1996 cease for any reason to constitute a
majority of the directors then in office; or
(4) the Corporation shall have five (5) or less full time
employees; or
(5) the Corporation makes an assignment for the benefit of
creditors; or
(6) the Corporation files or is subject to a petition in
bankruptcy, whether voluntary or involuntary, or
(7) the Corporation has a receiver or trustee appointed with
respect to a substantial amount of the Corporation's property.
5. Termination of Disbursement Account. If the Disbursement Fund or
Individual Disbursement accounts are not sooner applied pursuant to paragraph
3 above, then this Agreement will terminate and the Disbursement Fund is to be
dispersed as follows:
5.1 Corporation. The Individual Disbursement Accounts of each
Executive shall be returned to the Corporation upon the termination of the
respective Executive for cause, as defined in the Employment Agreement of
such Executive, on or prior to December 31, 1997.
5.2 Executives. Provided the Individual Disbursement Account has
not been returned to the Corporation pursuant to Section 5.1 of this Agreement,
the Individual Disbursement Account on an individual basis shall be distributed
to the respective Executive as follows:
(a) Upon the Corporation receiving additional funding,
equity, debt or otherwise, of $2 million or more; or
(b) on January 1, 1998.
6. Payment Agent. The undersigned agree that the following
provisions shall control with respect to the rights, duties, liabilities,
privileges and immunities of the Payment Agent while acting as Payment Agent.
6.1 Until such time as all monies have been disbursed pursuant to
this Disbursement Agreement, it is the intention of the parties to this
Disbursement Agreement that the Payment Agent shall act solely at all times in
accordance with the terms hereof and for so acting the Corporation and the
Executives hereby expressly release and relieve the Payment Agent of any and
all liability for any actions taken hereunder. The Payment Agent shall have a
prior lien on said funds, however, for any and all costs or expenses incurred by
it (including court costs and reasonable attorneys' fees) by reason of acting as
Payment Agent.
6.2 The Payment Agent acts hereunder as a depository only, and is
not responsible orliable in any manner whatsoever for the sufficiency,
correctness, genuineness or validity of the subject matter of the escrow, or any
part hereof. Further, the Payment Agent shall not be responsible
for determining (i) the accuracy of any notices or instructions delivered
hereunder, or the form of execution thereof, or (ii) the identity or authority
of any person executing or delivering this Disbursement Agreement, any property
delivered hereunder or any instructions delivered in connection herewith.
6.3 Payment Agent is authorized to invest the amounts deposited in
the Disbursement Fund in any suitable money market mutual funds or interest-
bearing deposit account. A proportional amount of interest earned on the
amounts deposited in the Disbursement Fund (calculated at the time of
disbursement less expenses of Payment Agent through date) shall be paid along
with any disbursements.
6.4 The Payment Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization, power of
attorney or other paper or document which the Payment Agent in good faith
believes to be genuine and what it purports to be.
6.5 In the event of any disagreement between any of the parties to
this Disbursement Agreement, or between them or either or any of them, and
any other person, resulting in adverse claims or demands being made in
connection with the subject matter of the escrow, in the event that
the Payment Agent in good faith is in doubt as to what action it should take
hereunder, then the Payment Agent may, at its option, refuse to comply with
any claims or demands on it, or doubts exist, and in such event, the Payment
Agent shall not be or become liable in any way or to any person for its failure
or refusal to act, and the Payment Agent shall be entitled to continue to
refrain from acting until (i) the rights of all parties shall have been fully
and finally adjudicated by a court of competent jurisdiction, or (ii) all
differences shall have been settled and all doubts resolved by agreement by all
interested persons, and the Payment Agent shall have been notified thereof in
writing signed by all such persons. The rights of the Payment Agent under this
paragraph are cumulative of all other rights which it may have by law or
otherwise.
6.6 Notwithstanding any other provision of this Disbursement
Agreement, should any controversy arise between the Corporation and the
Executives with respect to this Disbursement Agreement or with respect to the
right to receive the Individual Disbursement Account held by the Payment
Agent under this Disbursement Agreement, then the Payment Agent shall have
the right to institute a xxxx of interpleader in a court of competent
jurisdiction to determine the rights of the parties and to deposit such property
or funds into the registry of the court.
7. Miscellaneous.
7.1 Binding Effect. This Disbursement Agreement shall inure to the
benefit of and be binding upon each of the parties hereto, and their respective
successors, personal representatives, executors, heirs, beneficiaries and
assigns.
7.2 Headings. The section and paragraph headings contained in this
Disbursement Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Disbursement Agreement.
7.3 Notices. All communication provided for hereunder shall be in
writing and shall be deemed to be given when delivered in person or when
deposited in the U.S. Mail, first class, certified or registered with proper
postage prepaid, and addressed as follows:
If to Corporation:
Spintek Gaming Technologies, Inc.
Attention: Xxxxxxx X. Xxxxxxxxx V, Director
000 Xxxx 00xx
Xxxx Xxxxx, Xxxxxxx 00000
If to the Executives:
Xxxx X. Xxxxxxx, Esq.
000 Xxxxxxx Xxxxx Xxxxx, Xx. 000
Xxxxxxxxx, Xxxxxx 00000
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
If to Payment Agent:
Attn: XXX X. XXXXXX
Name
3773 Xxxxxx Xxxxxx Pkwy., Suite 290-N
Address
Las Vegas, NV 89109
City, State, Zip
By giving prior written notice thereof, any party shall have the right from time
to time and at any time to change its respective address.
7.4 Modification. This Disbursement Agreement may be modified
only by a written instrument signed by each of the parties hereto.
7.5 Miscellaneous. It is understood by the parties hereto that these
terms and conditions are for the benefits of the Corporation and the Executives
only, and are not intended to constitute an assignment, either legal or
equitable, to or in favor of any person not a party hereto, or any interest in
the Disbursement Fund. If the terms herein are in any way in conflict with the
terms of the Agreement, then the terms of the Agreement shall control.
IN WITNESS WHEREOF, the parties have set their hands and
affixed their seals all done on the day and year first above written.
"CORPORATION" "EXECUTIVES"
SPINTEK GAMING TECHNOLOGIES,
INC., a California corporation
By: /s/ XXXXXXX X. XXXXXXXXX, V /s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
Its: Secretary / Director
/s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
"PAYMENT AGENT"
XXXXXXX XXXX, a
Professional Association
EXHIBIT "C-1"
MODIFICATION
OF EMPLOYMENT AGREEMENT
THIS MODIFICATION OF EMPLOYMENT AGREEMENT (the
"Modification") is entered into this 5th day of February, 1997 by and between
SPINTEK GAMING TECHNOLOGIES, INC., a California corporation (the
"Corporation") and XXXX X. XXXXXXX, a resident of Nevada (the
"Executive").
WHEREAS, the Executive entered into an Employment Agreement with
the Corporation dated April 1, 1996, and subsequently amended October 18,
1996, to perform certain services therefor (the "Employment Agreement"),
copies of which are attached hereto as Exhibit "A";
WHERE AS, the Executive is claiming, and the Corporation
acknowledges, that a scrivener's error occurred in redrafting the Employment
Agreement dated October 18, 1996;
WHEREAS, the Corporation desires to (i) continue Executive in the
employment of the Corporation pursuant to such Employment Agreement and
(ii) correct the scrivener's error existing in paragraph 4 of the Employment
Agreement; and
WHEREAS, the Corporation and Executive have agreed to execute this
Modification in order to accomplish each of the foregoing items on the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. The parties each acknowledge to the other that the Corporation
and the Executive did enter into an Employment Agreement dated April 1,
1996, and subsequently amended October 18, 1996, and said Employment
Agreement, as amended is still in full force and effect as of the execution of
this Modification and that neither party hereto is in default or breach of the
Employment Agreement.
2. In order to correct the scrivener's error existing in paragraph 4
of the Employment Agreement, each party hereto agrees that the Employment
Agreement shall be modified as follows:
(a)by deleting (a) of subparagraph A.
(b)by inserting in lieu thereof the following new (a) of
subparagraph A., "(a) any person or affiliated group of
persons (other than the Corporation, or any employee
benefit plan of the Corporation ("Person") is or becomes
the beneficial owner, directly or indirectly through a
purchase, merger or other acquisition or transaction or
series of transactions, of shares of capital stock, whether
presently issued or issued in the future, of the
Corporation entitling such person to exercise forty
percent (40%) or more of the total voting power
of all shares of capital stock of the Corporation entitled
to vote generally in the election of directors; or"
3. Each of the parties hereto agree with each other party that the
revision to paragraph 4 of the Employment Agreement as provided above shall
be the only change, amendment or modification to the Employment Agreement
and, except for and with said change, the Employment Agreement shall remain
in full force and effect.
"CORPORATION"
SPINTEK GAMING TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx, CEO
Attest: /s/ XXXXXXX X. XXXXXXXXX, V
Xxxxxxx X. Xxxxxxxxx V, Secretary
"EXECUTIVE"
/s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx
EXHIBIT"C-2"
MODIFICATION
OF EMPLOYMENT AGREEMENT
THIS MODIFICATION OF EMPLOYMENT AGREEMENT (the
"Modification") is entered into this day of February, 1997 by and between
SPINTEK GAMING TECHNOLOGIES, INC., a California corporation (the
"Corporation") and XXXXXX X. XXXXXXX, a resident of Nevada (the
"Executive").
WHEREAS, the Executive entered into an Employment Agreement with
the Corporation dated November 15, 1995, and subsequently amended October
18, 1996, to perform certain services therefor (the "Employment Agreement"),
copies of which are attached hereto as Exhibit "A";
WHEREAS, the Executive is claiming, and the Corporation
acknowledges, that a scrivener's error occurred in redrafting the Employment
Agreement dated October 18, 1996;
WHEREAS, the Corporation desires to (i) continue Executive in the
employment of the Corporation pursuant to such Employment Agreement and
(ii) correct the scrivener's error existing in paragraph 4 of the Employment
Agreement; and
WHEREAS, the Corporation and Executive have agreed to execute this
Modification in order to accomplish each of the foregoing items on the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. The parties each acknowledge to the other that the Corporation and
the Executive did enter into an Employment Agreement dated November 15,
1995, and subsequently amended October 18, 1996, and said Employment
Agreement, as amended is still in full force and effect as of the execution of
this Modification and that neither party hereto is in default or breach of the
Employment Agreement.
2. In order to correct the scrivener's error existing in paragraph 4
of the Employment Agreement, each party hereto agrees that the Employment
Agreement shall be modified as follows:
(a)by deleting (a) of subparagraph A.
(b)by inserting in lieu thereof the following new (a) of
subparagraph A., "(a) any person or affiliated group of
persons (other than the Corporation, or any employee
benefit plan of the Corporation "(Person") is or becomes
the beneficial owner, directly or indirectly through a
purchase, merger or other acquisition or transaction or
series of transactions, of shares of capital stock, whether
presently issued or issued in the future, of the
Corporation entitling such person to exercise forty
percent (40%) or more of the total voting power
of all shares of capital stock of the Corporation entitled
to vote generally in the election of directors; or"
3. Each of the parties hereto agree with each other party that the
revision to paragraph 4 of the Employment Agreement as provided above shall
be the only change, amendment or modification to the Employment Agreement
and, except for and with said change, the Employment Agreement shall remain
in full force and effect.
"CORPORATION"
SPINTEK GAMING TECHNOLOGIES, INC.
By: /s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx, CEO
Attest: /s/ XXXXXXX X. XXXXXXXXX, V
Xxxxxxx X. Xxxxxxxxx, V, Secretary
"EXECUTIVE"
/s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
