EXHIBIT 10.1
EMPLOYMENT AGREEMENT FOR XXXX X. XXXXXXX
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is dated as of the 12th day of July, 1999 and
is by and between Trans World Gaming Corp., a Nevada corporation (the
"Corporation") and Xxxx X. Xxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Corporation desires to employ the Executive as Chief
Executive Officer and Chief Financial Officer and the Executive desires to be
employed by the Corporation;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) AFFILIATES. "Affiliates" of the Corporation, or a person
"affiliated" with the Corporation, are any persons or entities which, directly
or indirectly, through one or more intermediaries, controls or are controlled by
or are under common control with, the persons or entities specified.
(b) BASE SALARY. "Base Salary" shall have the meaning set forth in
Section 3(a) hereof.
(c) CAUSE. Termination of the Executive's employment for "Cause" shall
mean termination because of willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties which
failure is not reasonably cured within ten (10) days after receipt of written
notice from the Corporation, repeated unauthorized absences from work, the
commission of an act indictable as a felony, willful violation of any law, rule
or regulation (other than traffic violations or similar offenses) or of a final
cease-and-desist order or a material breach of any provision of this Agreement.
For purposes of this paragraph, no act or failure to act on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by the
Executive not in good faith and without reasonable belief that the Executive's
action or omission was in the best interest of the Corporation. Cause shall be
determined by the affirmative vote of a majority of the whole Board of Directors
(excluding the Executive, if the Executive is a member of the Board) after the
Executive has been provided the opportunity to make a presentation to the Board,
which presentation to the Board may be with counsel.
(d) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean the occurrence of any of the following events: (i) a
change in control of a nature that would be required to be reported in response
to Item 1(a) of Form 8-K or Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not any class of securities of the
Corporation is registered under the Exchange Act; (ii) any "person" (as such
term is used in Sections 13(d) and 14(d) of the
Exchange Act) or group of persons other than the Executive, the Corporation or
Value Partners, Ltd., is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 50% or more of the combined voting power of the
Corporation's then outstanding securities; or (iii) during any period of thirty
six consecutive months, individuals who at the beginning of such period
constitute the Board of Directors of the Corporation cease for any reason to
constitute at least a majority thereof unless the election, or the nomination
for election by stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of the period.
(e) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause, Disability or for Retirement,
the date specified in the Notice of Termination, and (ii) if the Executive's
employment is terminated for any other reason, the date on which a Notice of
Termination is given or as specified in such Notice. For purposes of this
Agreement, the Date of Termination shall also mean the date of the occurrence of
a Change of Control of the Corporation which shall be determined by the Board of
Directors in good faith for purposes of this Agreement.
(f) DISABILITY. Termination by the Corporation of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Corporation or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(g) IRS. "IRS" shall mean the Internal Revenue Service.
(h) NOTICE OF TERMINATION. Any purported termination of the
Executive's employment by the Corporation for any reason, including without
limitation for Cause, Disability or Retirement, or by the Executive for any
reason shall be communicated by a written "Notice of Termination" to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a dated notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated, (iii) specifies a Date of
Termination, which shall be not less than thirty (30) nor more than ninety (90)
days after such Notice of Termination is given, except in the case of the
Corporation's termination of Executive's employment for Cause for which the Date
of Termination may be the date of the notice; and (iv) is given in the manner
specified in Section 13 hereof.
(i) PERSON. "Person" means any individual, trust, partnership,
corporation, limited liability company, association, or other legal entity.
(j) RETIREMENT. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Corporation's retirement policies, including
early retirement, generally applicable to the Corporation's salaried employees.
(k) SUBSIDIARY. "Subsidiary" shall mean any subsidiary of the
Corporation.
2. TERM OF EMPLOYMENT.
(a) The Corporation hereby employs the Executive as Chief Executive
Officer and Chief Financial Officer of the Corporation, and Executive hereby
accepts said employment and agrees to render such services to the Corporation
for a period of three (3) years commencing on the date hereof, on the terms and
conditions set forth in this Agreement. This Agreement shall, on the third
anniversary of the date first above written (the "Expiration Date"), renew
automatically, without the action of any party, for an additional three (3) year
term unless either the Executive or the Corporation provides to the other
written notice of such party's desire that the Agreement not so renew no less
than sixty (60) days prior to the Expiration Date. Thereafter, this Agreement
shall renew automatically, without the action of any party, for three (3) year
terms on each third anniversary of the date first above written ("Extended
Expiration Date") unless either party provides written notice to the other of
such party's desire that the Agreement not so renew no less than sixty (60) days
prior to each Extended Expiration Date.
(b) During the term of this Agreement, the Executive shall perform
such executive services for the Corporation as is consistent with his title of
Chief Executive Officer and Chief Financial Officer and as directed, from time
to time, by the Board of Directors. The Executive shall be responsible for the
profitability of the Corporation, its financial reporting, strategic planning as
well as the supervision of the Corporation's day-to-day operations. The
Executive shall devote his full time, attention and energies to the business of
the Corporation and shall not, during the term hereof (as described in Section
2(a)), be employed or involved in any other business activity, whether or not
such activity is pursued for gain, profit or other pecuniary advantage, except
for (i) volunteer services for or on behalf of such religious, educational,
non-profit and/or other eleemosynary organization as Executive may wish to
serve, (ii) service as a director of as many as three (3) for-profit business
activities, (iii) services as an officer or employee of another for-profit
business as permitted by a vote of Board of Directors (without the Executive's
participation or vote, if the Executive is a member of the Board), and (iv) such
other activities as may be specifically approved by the Board of Directors
(without the Executive's participation or vote, if the Executive is a member of
the Board). This restriction shall not, however, preclude the Executive from
employment in any capacity with Affiliates of the Corporation, nor shall any
remuneration from such Affiliates be considered in calculating the Base Salary
(as defined in Section 3(a)) due to Executive hereunder.
3. COMPENSATION AND BENEFITS.
(a) For services rendered hereunder by the Executive, the Corporation
shall compensate and pay Executive for his services during the term of this
Agreement at a base salary of three hundred thousand dollars ($300,000.00) per
year of this Agreement ("Base Salary"), payable in semi-monthly increments,
commencing on a pro-rata basis in calendar year 1999, which Base Salary may be
increased (for any future year) from time to time in such amounts as may be
determined by the Board of Directors of the Corporation.
(b)(i) During the term of the Agreement, Executive shall be entitled to
participate in and
receive the benefits of any pension or other retirement benefit plan, including
the Corporation's Management Incentive Plan (the "Bonus Plan"), and any other
profit sharing, stock option, employee stock ownership, or other plans, benefits
and privileges given to employees and executives of the Corporation, to the
extent commensurate with his then existing duties and responsibilities, as fixed
by the Board of Directors of the Corporation. The Corporation shall not make any
changes in such plans, benefits or privileges which would adversely affect
Executive's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all executive officers of the Corporation and does not
result in a proportionately greater adverse change in the rights of or benefits
to Executive as compared with any other executive officer of the Corporation.
Nothing paid to Executive or on his behalf under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of or to reduce the Base Salary payable to Executive pursuant to Section
3(a) hereof.
(ii) The Executive shall be immediately qualified to participate
in the Bonus Plan upon the signing of this Agreement. Any payment of a bonus to
the Executive pursuant to the Bonus Plan will be contingent upon his achievement
of performance goals set in advance by Corporation's Board of Directors.
Thereafter, (i.e., for the calendar year 2000 and beyond), the performance goals
under the Bonus Plan shall be negotiated in good faith and determined by mutual
consent of the Executive and the Board of Directors. Bonus Plan awards are
incentive-based awards and are granted from a discretionary pool of funds set
aside from incremental profits of the Corporation. An award will be granted to
the Executive under the Bonus Plan only when, or if, the Executive accomplishes
the standards set for him thereunder.
(c) During the initial three-year term of the Agreement, the Executive
shall be entitled to receive, in the aggregate, options to purchase 300,000
shares of the Corporation's Common Stock pursuant to the terms and conditions of
the Corporation's 1998 Stock Option Plan (the "Plan") (the "Options"). The
Options shall be granted in three separate, equal, annual installments, each of
which shall have a five year term commencing upon the date on which each
installment is granted. The Options shall be granted by separate Option
Agreements in accordance with the Plan and shall vest in the following matter:
(i) Upon commencement of the first year this Agreement
(i.e., upon the date of the execution of this Agreement
by the Corporation), the Executive shall receive 100,000
options which shall be immediately exercisable at $0.50
per share for a five year term (the "First Year
Options");
(ii) Upon commencement of the second year of this Agreement,
the Executive shall receive an additional 100,000
options, which shall be vested and immediately
exercisable at $0.55 per share for a five year term (the
"Second Year Options"). In addition, upon commencement
of the second year of this Agreement, the effective
exercise price of any unexercised First Year Options
shall be increased to $0.55 per share (the "First Year
Carry-Over Options");
(iii) Upon commencement of the third year of this Agreement,
the Executive shall receive a final installment of
100,000 options, which shall be vested and
immediately exercisable at $0.61 per share for a five
year term (the "Third Year Options"). In addition, upon
commencement of the third year of this Agreement, the
effective exercise price of any unexercised First Year
CarryOver Options and any unexercised Second Year
Options shall be increased to $0.61 per share (all of
such unexercised options, collectively, the "Second Year
Carry-Over Options"); and
(iv) Should the Corporation experience a Change in Control
prior to the end of the initial three-year term of this
Agreement, all remaining Options, if any, whether or not
previously vested, shall be immediately granted and
become immediately vested and exercisable at the
then-applicable exercise price as provided in
Subsections 3(c)(i)-(iii) hereof. (So, for example, if
the Change in Control occurs in the second year of this
Agreement, all 300,000 options will be immediately
granted and become immediately vested and exercisable at
$0.55 per share).
(d) During the term of this Agreement, Executive shall be entitled to
three (3) weeks (15 working days) paid vacation in each calendar year to be
taken and determined in accordance with the vacation policies and procedures as
established from time to time by the Board of Directors of the Corporation.
Executive shall also be entitled to all paid holidays to which similarly
situated executives and key management employees of the Corporation are
entitled. The Executive shall be entitled to paid leave due to physical illness
in each calendar year to be taken and determined in accordance with the policies
and procedures as established from time to time by the Board of Directors.
Executive shall not be entitled to receive any additional compensation from the
Corporation for failure to take a vacation, or failure to use "sick days," nor
shall Executive be able to accumulate unused vacation or "sick" time from one
year to the next, except to the extent authorized by the Board of Directors of
the Corporation or pursuant to the policies of the Corporation.
(e) The Executive shall at all times during the period of the
Executive's employment under this Agreement be eligible to participate in and to
be covered by all plans, if any, effective generally with respect to executives
of the Corporation with respect to life insurance, accident insurance, health
insurance, hospitalization, disability, and other benefits of whatsoever kind or
description, to the extent the Executive is eligible under the terms of such
plans, on the same basis as other executives of the Corporation and without
restriction or limitation by reason of this Agreement. The Corporation shall
maintain coverage for the Executive to the fullest extent possible under the
Corporation's Director and Officers Liability Insurance Plan. In addition, the
Executive shall be entitled to indemnification for his acts as an executive
officer of the Corporation to the fullest extent as provided in the
Corporation's Articles of Incorporation and Bylaws and as provided under the
corporate law of the State of Nevada.
(f) The Corporation shall provide the Executive with secretarial and
support staff and suitably furnished offices and conference facilities in New
York, New York and in such other location, if any, in which the Executive
hereafter is required to perform services on behalf of the Corporation, all of
which shall be sufficient for the efficient performance of those duties. The
Executive understands and agrees that the office location of the Corporation may
be relocated from New York City, New York during the term of this Agreement and
agrees to relocate upon the request of the Board of Directors without additional
compensation.
(g) The Executive shall be entitled to all of the fringe benefits and
perquisites of office of whatsoever kind or description made available generally
to other executives of the Corporation, including, but not limited to, customary
paid holidays, without restriction or limitation by reason of any specific
benefit provided for in this Agreement.
4. EXPENSES. The Corporation shall reimburse Executive or otherwise
provide for or pay for all reasonable expenses incurred by Executive in
furtherance of, or in connection with the business of the Corporation,
including, but not by way of limitation, traveling expenses, and all reasonable
entertainment expenses, subject to such reasonable documentation and other
limitations as may be established by the Board of Directors of the Corporation.
The Corporation shall furnish to the Executive a 1998 Infinity QX4 automobile
and shall pay for all gas, oil, repairs, maintenance, insurance and other
related costs of such vehicle's operation. If any expenses are paid in the first
instance by Executive, the Corporation shall reimburse the Executive therefor
upon submission of the appropriate documentation therefor.
5. TERMINATION.
(a) The Corporation shall have the right, at any time upon prior
Notice of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause, Disability or
Retirement, and Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that (i) Executive's employment is terminated by the
Corporation for Cause or (ii) Executive terminates his employment hereunder
other than as a result of a Change in Control of the Corporation, Executive
shall have no right pursuant to this Agreement to compensation or other benefits
for any period after the applicable Date of Termination.
(c) In the event that the Executive's employment is terminated by the
Corporation other than for Cause (not including Disability or Retirement or the
expiration of this Agreement in accordance with its terms), within six (6)
months after the date of this Agreement, the Corporation, upon receipt of a
release satisfactory to the Corporation, shall pay to the Executive one year's
Base Salary in one lump-sum payment within thirty (30) days after the Date of
Termination. In the event that the Executive's employment is terminated by the
Corporation other than for Cause (not including Disability or Retirement or the
expiration of this Agreement in accordance with its terms) at any time after six
(6) months after the date of this Agreement, the Corporation, upon receipt of a
release satisfactory to the Corporation, shall pay to the Executive two year's
Base Salary in one lump sum payment within sixty (60) days after the Date of
Termination. In the event the Executive's employment is terminated pursuant to
this Section 5(c), the Corporation shall accelerate the grant date and vesting
of all Options, if any, that have not been previously granted as of the Date of
Termination ("Accelerated Termination Options"). The Accelerated Termination
Options shall become immediately vested and exercisable on the Date of
Termination at the then-applicable
exercise price as provided in Subsections 3(c)(i)-(iii) hereof. All vested
Options shall expire on their stated expiration date and the exercise price of
such vested Options as stated in Section 3(c) hereof shall not be altered.
6. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another corporation after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Corporation pursuant to employee benefit
plans of the Corporation or otherwise.
7. WITHHOLDING. All payments required to be made by the Corporation
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Corporation may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
8. NON-SOLICITATION.
(a) The Executive hereby acknowledges and recognizes the highly
competitive nature of the business of the Corporation and accordingly agrees
that, during the term of this Agreement and, in the event that the Executive's
employment is terminated other than for Cause (not including Disability or
Retirement or the expiration of this Agreement in accordance with its terms),
for the period during which the Executive receives severance payments pursuant
to Section 5(c) hereof, unless otherwise agreed to in writing by the
Corporation, the Executive shall not, either directly or indirectly, in any
manner or capacity, whether as principal, agent, partner, officer, director,
employee, joint venturer, or corporate shareholder or otherwise for the benefit
of any Person, (i) render services to, or solicit the rendering of services to,
any Person engaged in the Gaming Business within a Restricted Area (each as
defined in Section 8(b) hereof), or (ii) solicit the rendering of services to
any Person of any kind whatsoever which is then, or has been at any time during
a period of one year prior to the Date of Termination of this Agreement a
customer, vendor, supplier, competitor, employee, agent or representative of the
Corporation or any of its Subsidiaries in any manner which interferes or might
interfere with the relationship of the Corporation with such Person, or in an
effort to obtain such Person as a customer, supplier, vendor, employee, agent or
representative of any business in competition with the Corporation, or (iii) for
a period of two years (2) following the Date of Termination, hire or participate
in the hiring by any Person of an employee of the Corporation or any of its
Subsidiaries.
(b) During the term of this Agreement and for a period of two (2)
years following the Date of Termination, without the written consent of the
Corporation (which may be withheld in its sole discretion) the Executive shall
not, directly or indirectly, through majority equity ownership or otherwise,
own, operate or make any direct or indirect loan, advance, lease, or other
extension of
credit, or capital contribution to, or purchase or acquire any capital stock or
indebtedness or similar instrument of, or make any type of majority equity
investment (including investments in securities or instruments convertible into,
exchangeable for or exercisable for equity securities) (an "Investment") in or
act in any manner or capacity whether as a principal, agent, partner, officer,
director, shareholder, employee, joint venturer or otherwise, directly or
indirectly for any Person engaged in any casino-style gaming or related gaming
enterprise (a "Gaming Business") within a 500 kilometer radius of any of the
casino locations of the Corporation or any Affiliate therefore as of the term of
this Agreement or the Date of Termination (as the case may be) (the "Restricted
Area").
(c) It is expressly understood and agreed that although the Executive
and the Corporation consider the restrictions contained in Sections 8(a) and
8(b) of this Agreement reasonable for the purpose of preserving for the
Corporation its goodwill and other proprietary rights, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in Section 8(a) or 8(b) of this Agreement is
an unreasonable or otherwise unenforceable restriction against the Executive,
the provisions of Section 8(a) or 8(b) (as the case may be) of this Agreement
shall not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such other extent as such court may judicially
determine or indicate to be reasonable.
9. DISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive acknowledges
that the Corporation's trade secrets, as they may exist from time to time, and
confidential information concerning its programs, technical information, service
procedures, business plans and promotion techniques, are valuable, special and
unique assets of the Corporation. In light of the highly competitive nature of
the industry in which the Corporation's business is conducted, the Executive
agrees that all knowledge and information described in the preceding sentence
not in the public domain and heretofore or in the future obtained by the
Executive shall be considered confidential information. Executive agrees that he
will not disclose any of such secrets, processes or information to any Person or
other entity for any reason or purpose whatsoever, except as necessary in the
performance of his duties as an employee of the Corporation or as may otherwise
be required by the under applicable federal and state law or in compliance with
any lawfully served process, nor shall the Executive make use of any such
secrets, processes or information (other than information in the public domain)
for his own purposes or for the benefit of himself, any Person or other entity
(except the Company and its subsidiaries) under any circumstances, during the
term of this Agreement for a period of three (3) years after the Date of
Termination. The provisions contained in this Section 9 shall also apply to
information obtained by the Executive with respect to any future Subsidiary or
Affiliate of the Corporation.
10. BUSINESS INFORMATION. Upon the termination of his employment with
the Corporation, Executive (or, as appropriate, his personal representatives)
shall deliver to the Corporation (without retaining copies of the same), all
plans, codes, designs, correspondence, records, documents, accounts and papers
of any description and stored on any media (electronic or otherwise) and any
other property of the Corporation within the possession or under the control of
Executive (or, as appropriate, his personal representatives) and relating to the
affairs and business of the Corporation, whether drafted, created or compiled by
Executive or received by Executive from other individuals or entities (whether
employees of, or affiliated with, the Corporation).
11. REMEDIES. The Executive acknowledges and agrees that the
Corporation's remedy at law for a breach or threatened breach of any of the
provisions of Section 8, Section 9 or Section 10 of this Agreement would be
inadequate and, in recognition of this fact, in the event of a breach or
threatened breach by the Executive of any of the provisions of Section 8,
Section 9 or Section 10 of this Agreement, it is agreed that, in addition to any
remedy at law, the Corporation shall be entitled to without posting any bond,
and the Executive agrees not to oppose the Corporation's request in the nature
of specific performance, temporary restraining order, temporary or permanent
injunction, or any other equitable relief or remedy which may then be available,
provided, however, nothing herein shall be deemed to relieve the Corporation of
its burden to prove grounds warranting such relief nor preclude the Executive
from contesting such grounds or facts in support thereof. Nothing herein
contained shall be construed as prohibiting the Corporation from pursuing any
other remedies available to it for such breach or threatened breach.
12. ASSIGNABILITY. The Corporation shall assign this Agreement and its
rights and obligations hereunder, including all obligations owed by the Company
to the Executive pursuant to Section 3 herein, in whole, but not in part, to any
Affiliate or Subsidiary or to any Person with or into which the Corporation may
hereafter merge or consolidate or to which the Corporation may transfer all or
substantially all of its assets, and if in any such case said Person shall by
operation of law or expressly in writing assume all obligations of the
Corporation hereunder as fully as if it had been originally made a party hereto.
Failure of such person to assume the Corporation's obligations hereunder shall
be a material breach of this Agreement and shall entitle the Executive to
compensation as set forth in Section 5(c) herein. As used in this Agreement, the
term "Corporation" shall mean the Corporation as hereinbefore defined and any
successor to or assign of its business and/or assets. The Executive may not
assign or transfer this Agreement or any rights or obligations hereunder except
with respect to death or Disability benefits payable hereunder or pursuant to
plans of the Corporation.
13. APPROVALS. In the event that any rights granted to the Executive
under Section 3 of this Agreement are greater than such rights as he may
otherwise be entitled to under the Plan or the Bonus Plan, the terms of this
Agreement shall control and take precedence over the Plan and/or the Bonus Plan,
as the case may be. The Company hereby represents and agrees that it shall
obtain all necessary approvals required in connection with its obligations
hereunder, including such approvals as may be required from the Company's
Compensation Committee under the terms of the Plan and the Bonus Plan.
14. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Corporation: Board of Directors
Trans World Gaming Corp.
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
and
With a copy to: Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxx, Esq.
To the Executive: Xxxx X. Xxxxxxx
00 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
and
With a copy to: Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Esq.
15. AMENDMENT; WAIVER. This Agreement shall be effective as of the
date first written above. This Agreement represents the entire agreement of the
parties relating to subject matter hereof. No provisions of this Agreement may
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing signed by the Executive and such director or directors
or officer or officers as may be specifically designated by the Board of
Directors of the Corporation to sign on its behalf. No waiver by any party
hereto at any time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same time or at any prior or subsequent time.
16. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
State of New York without giving effect to its principles or rules of conflict
of laws to the extent such principles or rules would require or permit the
application of laws of another jurisdiction.
17. NATURE OF OBLIGATIONS. The obligations of the Corporation
hereunder are unsecured and nothing contained herein shall create or require the
Corporation to create a trust of any kind to fund any benefits which may be
payable hereunder.
18. INTERPRETATION AND HEADINGS. This Agreement shall be interpreted
in order to achieve the purposes for which it was entered into. The section
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
19. SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect. With
respect to Section 8 of this Agreement, in the event any court
of competent jurisdiction determines that such provisions are unreasonable or
contrary to law with respect to their time or geographic restriction, or both,
the parties hereto authorize such court to substitute restrictions as it deems
appropriate without invalidating such paragraph or this Agreement.
20. BINDING AGREEMENT. This Agreement shall inure to the benefit of,
and be enforceable by, the parties hereto and their respective personal
representative, distributes, devisees, legatees, executors, administrators,
heirs, successors and assigns.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed on the 12th day of
July, 1999.
ATTEST: TRANS WORLD GAMING CORP.
/s/ Xxxxxxx Xxxxxxx BY: /s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
Chief Executive Officer
ATTEST: EXECUTIVE
/s/ Xxxxxxx Xxxxxxx BY: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
