RESIGNATION AGREEMENT
This
Resignation Agreement (this “Agreement”) by and between Nevada Gold &
Casinos, Inc., a Nevada corporation (the “Company”) and Xxxxxxxxxxx X. Xxxxxxx
(the "Executive”), is dated as of September 6, 2005 (the “Execution
Date").
WHEREAS,
the Executive has been employed by the Company as its Chief Financial Officer;
and
WHEREAS,
the Executive has tendered his resignation from the Company and the Company
and
Executive wish to set forth their mutual agreement as to the terms and
conditions of such resignation;
NOW
THEREFORE, the Company and the Executive hereby agree as follows:
1. Resignation.
Effective as of October 31, 2005 (the “Resignation Date”), the Executive will
resign from his employment with the Company, and from all other positions
the
Executive then holds as an officer or member of the board of directors of
any of
the Company’s subsidiaries or affiliates (the Company and all of its
subsidiaries and all of its affiliates are hereinafter referred to as the
“Affiliate Entities”).
2. Consulting
Payments. (a) The Company agrees to and does hereby engage Executive, and
Executive hereby agrees, to provide the consulting services to the Company
for a
twelve-month period following October 31, 2005. In consideration for such
services, the Company shall pay to the Executive in twelve (12) equal monthly
installments of $14,200 each, commencing November 15, 2005. Executive shall
make
himself available at times mutually acceptable to the Executive and the Company
to consult with the Company on such matters concerning the affairs of the
Company as the Company may request from time to time; provided, however,
that
Executive shall not be required to devote more than 8 hours per month in
the
performance of his services. During the consulting term, Executive shall
be free
to pursue and enter into other consulting or employment arrangements with
third
parties. Executive's obligation to perform services hereunder shall not preclude
Executive from engaging for compensation or otherwise in any business,
employment, occupation, profession or other activity (either as an employee
or
on his own behalf). No amounts due Executive hereunder shall be reduced or
offset by any compensation whatsoever received by Executive from any other
employment or consulting of Executive. The Company shall pay Executive whether
or not the Company has called upon Executive for Services. During the consulting
term, Executive shall perform his services as an independent contractor and
shall not be an employee of the Company for any purpose.
(b)
The
Company agrees to pay as incurred (within 10 days following the Company’s
receipt of an invoice from the Executive), all legal fees and expenses that
the
Executive incurs in connection with entering into this Agreement; provided,
that
in no event shall the Company pay any such legal fees and expenses in excess
of
$2,000.
(c)
The
Executive shall retain his laptop computer; provided, that the Company shall
arrange for removal from the hard drive of said computer any of its proprietary
software and confidential and proprietary information.
(d) The
Company's payment obligations as set forth in this Section 2 are contingent
upon
the Executive signing and providing to the Company no earlier than on the
Resignation Date a statement ratifying the terms of this Agreement, including
the waivers and releases contained in this Agreement, as of the Resignation
Date.
3. Mutual
Nondisparagement. (a) The Executive shall not make, participate in the making
of
or encourage any other person to make, any statements, written or oral, which
criticize, disparage, or defame the goodwill or reputation of, or which are
intended to embarrass or adversely affect the morale of, any of the Affiliated
Entities or any of their respective present, former or future directors,
officers, executives, employees and/or shareholders. The Executive further
agrees not to make any negative statements, written or oral, relating to
his
employment, the termination of his employment, or any aspect of the business
of
the Affiliated Entities.
(b)
The
Company’s executive officers shall not make, participate in the making of, or
encourage any employees or any other person to make, any statements, written
or
oral, which criticize, disparage or defame the reputation of, or which are
intended to embarrass, the Executive. The Company’s executive officers shall not
make any negative statements, written or oral, relating to the Executive’s
employment or the termination of his employment. Notwithstanding the foregoing,
nothing in this Section 3(b) shall prohibit any of the Company’s employees or
executive officers nor any member of the Company’s Board of Directors from
making non-public statements to one another in the course of carrying out
their
duties as such.
(c)
Notwithstanding the foregoing, nothing in this Section 3 shall prohibit any
person from making truthful statements when required by order of a court
or
other body having jurisdiction, or as otherwise may be required by law or
legal
process.
4. Mutual
Confidentiality. The existence of and terms and conditions of this Agreement
shall be held confidential by the parties hereto, except for disclosure (i)
by
the Company as may be required by applicable securities laws, as determined
by
the Company upon the advice of counsel, (ii) by the Executive to his legal
and
financial advisors and his spouse, each of whom shall be instructed by the
Executive to maintain the terms of this Agreement in strict confidence in
accordance with the terms hereof, (iii) by either party if required by order
of
a court or other body having jurisdiction over such matter or as otherwise
may
be required by law or legal process, and (iv) by either party with the written
consent of the other. In addition, the Executive shall hold in utmost confidence
for the benefit of the Company all secret or confidential information, knowledge
or data relating to the Affiliated Entities and their respective businesses
that
he has obtained during his employment by the Company and the other Affiliated
Entities that is not public knowledge (other than as a result of the Executive’s
violation of this Section 4) (“Confidential Information”) for a period of four
(4) years following this Agreement. The Executive shall not communicate,
divulge
or disseminate Confidential Information at any time, except with the prior
written consent of the Company or as otherwise required by law or legal
process.
5. The
Executive’s Covenants. The Executive shall make himself available to
the
Company following the Resignation Date to assist the Affiliated Entities,
as may
be requested by the Company at mutually convenient times and places, with
respect to pending and future litigations, arbitrations, governmental
investigations or other dispute resolutions relating to matters that arose
during the Executive’s employment with the Company. The Company will reimburse
the Executive for all reasonable expenses and costs he may incur as a result
of
providing assistance under this Section 5, upon receipt of proper documentation
thereof.
6.
Release.
General Release; Time to Consider and Cancel the Agreement; Age Discrimination
in Employment Act Waiver. (a) The Executive, on behalf of himself and his
successors, assigns, heirs and any and all other persons claiming through
the
Executive, if any, and each of them, shall and does hereby forever relieve,
release, and discharge the Company and the other Affiliated Entities and
their
respective predecessors, successors, assigns, owners, attorneys,
representatives, affiliates, parent corporations, subsidiaries (whether or
not
wholly-owned), divisions, partners and their officers, directors, agents,
employees, servants, executors, administrators accountants, investigators,
insurers, and any and all other related individuals and entities, if any,
and
each of them, in any and all capacities, from any and all claims, debts,
liabilities, demands, obligations, liens, promises, acts, agreements, costs,
and
expenses (including, but not limited to, attorneys’ fees), damages, actions and
causes of action, of whatever kind or nature, including, without limitation,
any
statutory, civil or administrative claim, or any claim, arising out of acts
or
omissions occurring before the execution of this Agreement, whether known
or
unknown, suspected or unsuspected, fixed or contingent, apparent or concealed
(collectively referred to as “claims”), including, but not limited to, any
claims based on, arising out of, related to or connected with this Agreement,
the Executive’s employment or his resignation, and any and all facts in any
manner arising out of, related to or connected with the Executive's employment
with, or resignation of employment from, the Company and its subsidiaries
and
affiliates.
(b)
The
Executive expressly waives any and all rights under any applicable law with
respect to claims that he does not know or suspect to exist in his favor
at the
time of executing this release, even though if known by him, such claims
must
have materially affected his settlement with the Company.
(c)
In
addition to the release set forth above in this Section 6, the Executive
hereby
voluntarily and knowingly waives all rights or claims arising under the Federal
Age Discrimination in Employment Act. This waiver is given only in exchange
for
consideration in addition to anything of value to which the Executive would
have
been entitled absent this Agreement. Such waiver does not waive rights or
claims
which may arise after the date of execution of this Agreement. The Executive
acknowledges that: (i) this entire Agreement is written in a manner calculated
to be understood by him; (ii) he has been advised and the Company hereby
advises
him to consult with an attorney before executing this Agreement; (iii) he
was
given a period of twenty-one days within which to consider this Agreement;
and
(iv) to the extent he executes this Agreement before the expiration of the
twenty-one-day period, he does so knowingly and voluntarily and only after
consulting his attorney. The Executive shall have the right to cancel and
revoke
this Agreement during a period of seven days following his execution of this
Agreement, and this Agreement shall not become effective or enforceable,
and no
money shall be paid hereunder, until the day after the expiration of such
seven-day period (if the Executive has not exercised his right to revoke
the
Agreement). The seven-day period of revocation shall commence upon the date
of
execution of this Agreement. In order to revoke this Agreement, the Executive
shall deliver to the Company, prior to the expiration of said seven-day period,
a written notice of revocation. Upon such revocation, this Agreement shall
be
null and void and of no further force or effect.
(d)
Nothing herein shall be deemed to release the Company in respect of the
Executive’s rights under this Agreement, including without limitation, those
rights granted to Executive pursuant to paragraph 2.
(e)
The
Company, on behalf of itself and the other Affiliated Entities, their respective
successors and assigns, and any and all other persons claiming through any
Affiliated Entity, and each of them, shall and does hereby forever relieve,
release and discharge the Executive and his successors, assigns, and heirs,
from
any and all claims, debts, liabilities, demands, obligations, liens, promises,
acts, agreements, costs and expenses (including, but not limited to, attorneys’
fees), damages, actions and causes of action, of whatever kind or nature,
including, without limitation, any statutory, civil or administrative claim,
or
any claim, arising out of acts or omissions occurring before the execution
of
this Agreement, whether known or unknown, suspected or unsuspected, fixed
or
contingent, apparent or concealed (collectively referred to as “claims”),
including, but not limited to, any claims based on, arising out of, related
to
or connected with this Agreement, the Executive’s employment or the termination
thereof, and any and all facts in any manner arising out of, related to or
connected with the Executive’s employment with, or termination of employment
from, the Company and its subsidiaries and affiliates, including, but not
limited to, statutory and common law claims of any kind, including, but not
limited to, contract, tort, and property rights including, but not limited
to,
breach of contract, breach of the implied covenant of good faith and fair
dealing, tortious interference with contract or current or prospective economic
advantage, fraud, deceit, misrepresentation, defamation, wrongful termination,
infliction of emotion distress, breach of fiduciary duty, and any other common
law claim of any kind whatever.
(f)
The
Company expressly waives any and all rights under any applicable law with
respect to claims that it does not know or suspect to exist in its favor
at the
time of executing this release, even though if known by it, such claims must
have materially affected its settlement with the Executive.
(g)
The
Company expressly releases the Executive from any noncompetition covenants
or
agreements with the Company.
7. Indemnification
Agreement; Stock Option Agreements. The Company and the Executive agree that
the
terms and provisions of that certain Indemnification Agreement between Company
and Executive, dated June 11, 2001 shall survive the execution of this Agreement
and shall continue in force and effect. The Company and the Executive agree
and
confirm that the Company's 1999 Stock Option Plan, as amended, and the Stock
Option Agreements between the Company and the Executive dated December 3,
2001,
March 31, 2003, February 26, 2004 and September 9, 2004, respectively, shall
govern and control the exercise of the stock options granted in such Stock
Option Agreements. In particular, the Company and Executive agree and confirm
that the stock options granted in each Stock Option Agreement may be exercised
until the earlier of (A) the expiration of one day less than three months
from
the Resignation Date, or (B) the expiration of the Option term set forth
in such
Stock Option Agreement.
8. Entire
Agreement; Other Benefits. This Agreement and any other agreement or writing
specifically referenced in this Agreement sets forth the entire agreement
of the
Company and the Executive with respect to the subject matter hereof. Without
limiting the generality of the foregoing, the Executive expressly acknowledges
and agrees that except as specifically set forth in this Agreement, he is
not
entitled to receive any severance pay, severance benefits, compensation or
employee benefits of any kind whatsoever from any of the Affiliated Entities.
9. Successors.
This Agreement is personal to the Executive and without the prior written
consent to the Company shall not be assignable by the Executive other than
by
will or the laws of descent and distribution. This Agreement shall inure
to the
benefit of and be enforceable by the Executive’s legal representatives. This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors.
10. Amendment.
This Agreement may be amended, modified or changed only by a written instrument
executed by the Executive and the Company.
11. Governing
Law. This Agreement shall be governed by and construed in accordance with
the
laws of the State of Texas without reference to principles of conflict of
laws.
The captions of this Agreement are not part of the provisions hereof and
shall
have no force or affect.
12. Notices.
All notices and other communications hereunder shall be in writing; shall
be
delivered by hand delivery to the other party or mailed by registered or
certified mail, return receipt requested, postage prepaid; shall be deemed
delivered upon actual receipt; and shall be addressed as follows:
If
to the
Executive:
Xxxxxxxxxxx
X. Xxxxxxx
0000
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxx 00000
If
to the
Company:
Nevada
Gold & Casinos, Inc.
0000
Xxxx
Xxx Xxxx., Xxxxx
000
Xxxxxxx,
Xxxxx, 00000
Attn:
H.
Xxxxxx Xxxx
or
to
such other address as either party shall have furnished to the other in writing
in accordance
herewith.
13. Tax
Witholding. Notwithstanding any other provision of this Agreement, the Company
may withhold from any amounts payable under this Agreement, or any other
benefits received pursuant hereto, such minimum Federal state and/or local
taxes
as shall be required to be withheld under any applicable law or
regulation.
14. Counterparts.
This Agreement may be executed in several counterparts, each of which shall
be
deemed an original and said counterparts shall constitute but one and the
same
instrument.
IN
WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement
as
of the date first set forth above.
NEVADA
GOLD & CASINOS, INC.
By:______________________________
H.
Xxxxxx
Xxxx
President & CEO
XXXXXXXXXXX
X. XXXXXXX
_____________________________
Xxxxxxxxxxx
X. Xxxxxxx
(Individual)
