REVISED AND RESTATED MANAGEMENT AGREEMENT (“Management Agreement”)
Exhibit
10.177
REVISED
AND RESTATED MANAGEMENT AGREEMENT
This
Management Agreement is made effective for all purposes and in all respects
as
of the 30th day of September, 2006, by and between CENTURY RESORTS INTERNATIONAL
LTD. (a Mauritius corporation 100% owned by Century Casinos, Inc.), CENTURY
CASINOS, INC., a US, Delaware corporation (as guarantor), and FOCUS CASINO
CONSULTING AG, a Swiss corporation.
CENTURY
RESORTS INTERNATIONAL LTD. shall be referred to as “Company”,
CENTURY
CASINOS, INC. shall be referred to as “Guarantor”, and
FOCUS
CASINO CONSULTING AG shall be referred to as “Consultant”.
WITNESSETH
THAT:
The
term
of this Management Agreement shall commence on the day first above written
and
shall continue until December 31, 2011, and shall be automatically renewed
for
additional, successive periods of five (5) years each thereafter, unless sooner
terminated in accordance with the relevant provisions of this Management
Agreement.
By
entering into this Management Agreement, Consultant shall undertake and assume
the responsibility of performing for and on behalf of the Company such duties
as
are usual, similar and customary to the position of a (Co) Chief Executive
Officer. The duties of Consultant shall be performed through Consultant by
a
management team, of which Xx. Xxxxx Xxxxxxxxxx has to be part of. Consultant
shall plan, schedule and book all business travels at his
discretion.
1
As
annual
compensation for the services rendered by Consultant for the Company pursuant
to
this Management Agreement, Consultant shall be paid not less than the following
base annual management fee, on a monthly basis, during the term hereof: $360,000
(three hundred and sixty thousand US dollars), plus annual increases and
bonuses, and such other incentives, benefits, and compensation as may be awarded
to him from time to time by the Compensation Committee of the Board of Directors
of the Guarantor.
In
addition to, and not in limitation of, the compensation referred to in Section
3, Consultant shall receive prompt reimbursement of all reasonable expenses
incurred in connection with the performance of the duties for the Company,
upon
submission of receipts to the Company. Reasonable expenses shall include, but
not be limited to, all out-of-pocket expenses for entertainment, travel (on
the
basis of business class and first class travel on domestic and international
flights, respectively), meals and lodging (on a five-star hotel basis),
automobile expenses (on the basis of executive/luxury class automobiles),
communications and (home) office costs and the like incurred by the Consultant.
Guarantor shall provide, throughout the term of this Management Agreement,
including any extended terms (i.e. as referred to in 5.3(b)(2)) hereof, an
internationally accepted corporate credit card for Consultants exclusive
use.
5. Termination.
5.1 Termination
By Either Party Without Cause.
At any
time during the term hereof, or at the end of the term or any renewal term
under
Section 1 above, this Management Agreement may be terminated “without cause” by
either the Company or the Consultant upon written notice to the other party.
(a)
Termination
By Consultant.
In the
event of such termination “without cause” by Consultant, the Company shall have
the option either (i) to accept Consultant’s resignation, effective immediately
on receipt of such written notice; or (ii) to require Consultant to continue
to
perform his duties hereunder, for a period not to exceed six (6) months from
the
date of receipt of such written notice. In either event, Consultant shall be
continued at the same compensation / management fee for a period of six (6)
months from the date of written notice of termination. Such compensation shall
be paid to the Consultant in six (6) equal, successive monthly payments,
beginning on the 1st day of the month immediately following the date of written
notice of termination.
(b)
Termination
By Company.
In the
event of such termination “without cause” by the Company, the provisions of
Section 5.3(b) shall apply.
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Notwithstanding
any other provision hereof, the Company may terminate Consultant's engagement
under this Management Agreement at any time for cause. The termination shall
be
effected by written notice thereof to the Consultant, which shall specify the
exact cause for termination.
For
purposes hereof, the term "cause" shall mean the failure of Consultant, without
good reason, within thirty (30) days after receipt by Consultant of written
notice thereof from the Company, to start to correct, cease, or otherwise alter
any specific action or omission to act that constitutes a willful and material
breach of this Management Agreement resulting in material and substantial damage
to the Company, or willful gross misconduct resulting in material and
substantial damage to the Company.
Once
such
valid and uncontested termination for cause by the Company becomes effective,
the Company has the right to terminate any compensation / management fee
payments to Consultant and Consultant shall not receive any termination pay
or
benefits beyond such date.
(a) Notwithstanding
any other provision hereof, Consultant may terminate his engagement with Company
under this Management Agreement at any time for cause, upon written notice
thereof to the Company specifying the cause for Consultant’s termination.
For
purposes hereof, the term "for cause" shall mean:
(i) the
failure of the Company for any reason, within thirty (30) days after receipt
by
the Company of written notice from Consultant, to correct, cease, or otherwise
alter any material adverse change in the conditions of Consultant's engagement,
including, but not limited to any change in Consultant's duties (such as, but
not limited to another person or consulting company assuming the same or similar
title, position or duties, or the Consultant’s primary duties being assigned to
be performed by the Consultant in a country other than the country of primary
residence of the Consultant's management team, including Xx. Xxxxx Xxxxxxxxxx),
unless Consultant consents in advance and in writing to such change;
or
(ii) a
“Change
of Control” of the Company occurs, or has previously occurred at any time during
Consultant’s engagement hereunder.
“Change
of Control” as used herein shall mean any of the following: (a) any person or
entity (not affiliated with the Consultant or Xx. Xxxxx Xxxxxxxxxx) becoming
the
beneficial owner of a majority of the Company’s then outstanding securities; (b)
the triggering of the issuance of stock rights to Shareholders pursuant to
the
Company’s Stock Rights Agreement, as amended from time to time; (c) the
replacement during any two calendar years of half or more of the existing Board
of Directors of the Company;
3
(d)
the
replacement, or rejection (i.e. through a proxy fight), of one or more
person(s), nominated to be Director(s) by the Company’s Board of Directors
before any Change of Control; (e) Xx. Xxxxx Haitzmann is no longer Chairman
and
Co Chief Executive Officer of the Company, unless because of his death or
permanent disability; (f) holders of the Company’s securities approve a merger,
consolidation or liquidation of the Company.
(b) In
the
event of termination by the Consultant "for cause" hereunder:
(1) A
lump
sum cash benefit payment of three (3) times the Consultant’s then current annual
compensation/management fee, plus three (3) times the Consultant’s average bonus
for the last three years, shall be made to Consultant within 10 (ten) days
of
such written notice.
(2) Consultant
may also, in addition to, and not in limitation of payments under Section
5.3(b)(1) hereunder, at his sole option, elect to serve as a consultant to
Company (working out of the then current residence of Xx. Xxxxx Xxxxxxxxxx)
for
an additional period of three (3) years at his then current
compensation/management fee, his previous year’s bonus and current benefits.
During such additional period of three (3) years, Consultant would be required
to keep himself reasonably available to the Company to render advice or to
provide services for no more than thirty (30) days per year.
5.4
Effective
Date of Termination.
Unless
otherwise specified, the effective date of termination, as used in this Section
5, shall be the date on which (i) Consultant receives written notice of
termination from the Company and such termination is not contested by
Consultant, or, if contested by Consultant, such termination has been found
legally correct and there are no further possibilities for Consultant to
challenge such legal decision, or (ii) Consultant gives written notice of
termination to the Company.
During
the period of his engagement under this Management Agreement, the Consultant
shall not be employed by or otherwise engage or be interested in any business
other than the Company, with the following exceptions:
(a)
Consultant's
investment or involvement in any business shall not be considered a violation
of
this Section, provided that such business is not in direct competition with
the
Company and the Consultant does not render substantial management or other
personal services to such business;
(b)
Consultant
may consult with or for other businesses not in direct competition with the
Company.
7.
Indemnification.
4
So
long
as Consultant is not found by a court of law to be guilty of a willful and
material breach of this Management Agreement, or to be guilty of willful gross
misconduct, Consultant shall be indemnified from and against any and all losses,
liability, claims and expenses, damages, or causes of action, proceedings or
investigations, or threats thereof (including reasonable attorney fees and
expenses of counsel satisfactory to and approved by Consultant) incurred by
Consultant, arising out of, in connection with, or based upon Consultant's
services and the performance of his duties pursuant to this Management
Agreement, or any other matter contemplated by this Management Agreement,
whether or not resulting in any such liability; and Consultant shall be
reimbursed by the Company as and when incurred for any reasonable legal or
other
expenses incurred by Consultant in connection with investigating or defending
against any such loss, claim, damage, liability, action, proceeding,
investigation or threat thereof, or producing evidence, producing documents
or
taking any other action in respect thereto (whether or not Consultant is a
defendant in or target of such action, proceeding or
investigation).
Unless
the express provisions of a particular section of this Management Agreement
state otherwise, or performance thereunder would be impossible, this Management
Agreement shall be binding upon, and shall inure to the benefit of, Company,
Guarantor and Consultant, and their respective heirs, personal and legal
representatives, successors, and assigns. It shall also be expressly binding
upon and inure to the benefit of any person or entity assuming the Company
and/or the Guarantor, by merger, acquisition, consolidation, purchase of assets
or stock, or otherwise.
9.
Governing
Law.
It
is
understood and agreed that the construction and interpretation of this
Management Agreement shall at all times and in all respects be governed by
the
laws of the State of Delaware. The Company agrees to cover all costs, including
legal, arising in connection with drafting and implementing this Management
Agreement, both for the Company and for Consultant.
10. Severability.
The
provisions of this Management Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of the provisions of this
Management Agreement shall not affect the validity and enforceability of the
other provisions.
11. Notice.
Any
notice required to be given hereunder shall be sufficient if it is in writing
and sent by certified or registered mail, return receipt requested, first-class
postage prepaid, to the following respective addresses, which may hereafter
be
changed by written notice to the other party:
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Company
at
0xx
xxxxx,
Xxxxxxxxx Xxxxxx 0, Xxxx Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxx;
Guarantor
at 0000
X Xxxx Xxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX 00000, XXX;
Consultant
at Focus
Casino Consulting AG, c/o Hübner & Hübner, Schönbrunnerstrasse 000,
0xx
xxxxx,
Xxxxxx 0000, Xxxxxxx.
This
Management Agreement contains the entire agreement and understanding by and
between the Company and Consultant with respect to the engagement of Consultant.
No change or modification of this Management Agreement shall be valid or binding
unless it is in writing and signed by the party intended to be bound. No waiver
of any provision of this Management Agreement shall be valid unless it is in
writing and signed by the party against whom the waiver is sought to be
enforced. No valid waiver of any provision of this Management Agreement at
any
time shall be deemed a waiver of any other provision of this Management
Agreement at such time or at any other time. The Compensation Committee of
Guarantor shall administer this Management Agreement, in good faith, and may
make such administrative or ministerial adjustments hereto as may be reasonably
required without requiring written Amendment, if Consultant agrees in advance
and in writing, and the rights of the Consultant are not adversely affected
thereby.
13. Guarantee.
The
Company and the Guarantor specifically consent to and agree as
follows:
The
Company will invoice Guarantor, and Guarantor will promptly compensate the
Company, for that portion of services under this Management Agreement that
have
been/respectively will be performed by Consultant for the Company. Further,
Guarantor guarantees to the Company and the Consultant that it will promptly
reimburse and guarantee the performance of all requirements and obligations
of
the Company under this Management Agreement, in case the Company should not
be
able to promptly fulfill any of its obligations under this Management
Agreement.
14. Confidentiality.
Other
than in the performance of his duties hereunder, Consultant agrees not to
disclose, either during the term of his engagement by the Company or at any
time
thereafter, to any person, firm or corporation any confidential information
concerning the business affairs, financial affairs, know-how, private documents,
reports, plans, proposals, marketing and sales plans, or similar information
of
the Company. Any such documents, techniques, methods, processes or technologies
used by the Company shall be considered confidential and a “trade secret” for
the purposes of this Management Agreement.
15. Counterparts.
This
Management Agreement may be executed in two or more counterparts, any one of
which shall be deemed the original without reference to the
others.
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IN
WITNESS WHEREOF, the Company, Guarantor and Consultant have duly executed
this
Management Agreement as of the day and year first above written.
COMPANY:
CONSULTANT:
Century
Resorts International Ltd.,
Focus
Casino Consulting AG,
a
Mauritian corporation a
Swiss
corporation
By:
/s/ Richard Arlove By:
/s/ Xxxxxx Xxxxxxx
Member of the Board Chairman
of the Board
By:
/s/ Xxxxx Haitzmann
Member of the Board
GUARANTOR:
Century
Casinos, Inc.
By:
/s/ Xxxxxxxxx Xxxxxxxxxx
Chairman of the Compensation Committee
By:
/s/ Xxxxx Xxxxxxx
Member of the Compensation Committee