CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is entered into as of this 1st day
of January, 1997 between TRANS WORLD GAMING CORP., a Nevada corporation (the
"Company") and Xx. Xxxxxxx Xxxxxxxxxx (the "Consultant").
RECITALS
A. The Company is involved in the ownership, management, and development of
businesses in the gaming industry on a worldwide basis.
B. Company desires to be assured of the assistance of Consultant in order to
avail itself of Consultant's experience, skills, abilities, background and
knowledge, and is therefore willing to engage the Consultant upon the terms
and conditions herein contained.
C. Consultant represents that he has expertise, experience and contacts in the
gaming industry, and is familiar with the operational and regulatory
conditions of that industry and is willing to be engaged and retained by
the Company upon said terms and conditions herein contained.
NOW, THEREFORE, in consideration of the recitals and the covenants and
conditions hereinafter set forth the Consultant and Company agree as
follows:
1. CONSULTING SERVICES
(a) Company hereby retains Consultant to advise the Company on the
financing of its worldwide gaming operations, the identification
and evaluation of business opportunities, including, but not
limited to acquisitions and various other gaming matters.
Consultant agrees that all gaming opportunities of which
Consultant becomes aware during the term of this Agreement will
be referred to the Company first and on a first right-of-refusal
basis.
(b) Consultant agrees that all of Consultant's work hereunder shall
be considered property of the Company and that all ownership
rights and copyrights or trade secret pertaining to such work
shall be and remain the property of the Company. Company may, in
its discretion, assign any rights in any of the foregoing to the
Consultant on a transaction by transaction basis.
(c) At the pleasure and direction of the Company, Consultant shall
serve as a member of the Company's board of directors and as
chairman thereof.
2. TERMINATION OF EMPLOYMENT CONTRACT
Company and Consultant hereby agree that, effective December 31, 1996, the
Employment Contract between Company and Consultant dated as of March 6,
1996 is hereby terminated and without any further force or effect.
Consultant shall, effective December 31, 1996, resign from his positions as
President and Chief Executive Officer of the Company, and shall no longer
be obligated to perform the duties set forth in the Employment Contract.
3. RELATIONSHIP OF THE PARTIES
This Agreement shall not constitute an employer/employee relationship. It
is the intention of each party that Consultant shall be an independent
contractor and not an employee of the Company. Subject to the express
provisions herein, the manner and means utilized by Consultant in
performance of his services hereunder shall be under the sole control of
Consultant. All compensation paid to Consultant hereunder shall constitute
earnings to Consultant. Company shall not withhold any amounts therefrom
for Federal, State and local income taxes from Consultant's compensation,
or such employee contributions under the Federal Insurance Contribution Act
(Social Security) or any other similar Federal or State law applicable to
employers and employees. In the fulfillment of his obligations hereunder,
Consultant shall have no authority to create any obligations for the
Company, bind the Company to any contracts or other obligations, or commit
the Company in any manner either verbally or in writing without the prior
written authority of the Company.
4. TERM OF THE AGREEMENT
The term of this Agreement will be twenty-seven (27) months commencing
January 1, 1997, and continuing through March 31, 1999; provided that the
foregoing clause notwithstanding, this Agreement may be terminated at any
time by either party for any reason on thirty (30) days prior written
notice.
5. COMPENSATION OF CONSULTANT
Company hereby agrees to compensate Consultant as follows:
(a) Company shall pay Consultant five thousand dollars ($5,000.00)
per month payable on or before the fifteenth (15th) day of each
month, such amount representing the entire obligation of the
Company to the Consultant. Consultant shall be required to work
no more than the equivalent of eight (8) days in a calendar
month.
(b) As additional compensation from the Company, Consultant shall be
entitled to: (i) an extension through the earlier of (A) the
expiration of the term of this Agreement or (B) within ninety
(90) days of its early termination of all stock options in the
Company and held by Consultant in effect as of December 31, 1996,
(except as set forth above. Consultant shall not be entitled to
participate in Company's 1993 Incentive Stock Option Plan or
similar plans); (ii) Company shall reimburse Consultant for
medical benefits under COBRA for the COBRA period after which
Company shall either continue to reimburse Consultant for such
coverage or reimburse Consultant for equivalent medical coverage
in Company's sole discretion; and (iii) Consultant shall be
entitled to use the Company automobile until expiration of this
Agreement or expiration of that certain Motor Vehicle Closed-
Lease Agreement dated as of March 4, 1995 between the Company and
Valley National Financial Service Company, whichever occurs
first.
(c) Company shall be responsible for all travel, entertainment and
out-of-pocket expenses incurred by Consultant in performing
services hereunder. All expenses
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will be appropriately documented and submitted to the Company for
payment, and shall be approved in advance by the Company.
6. DISCLOSURE OF CONFIDENTIAL INFORMATION
(a) DEFINITION OF CONFIDENTIAL INFORMATION: For purposes of this
Agreement, "Confidential Information" means any information that
is not generally known to the public that relates to the Company,
its business operations or agents, or information which from all
circumstances, the Consultant knows or has reason to know that
the Company intends or expects to be maintained. Confidential
Information includes, but is not limited to, information
contained in or relating to the customer lists, price lists,
product designs, marketing or business plans or proposals,
customer information, merchandising, selling, accounting,
finances, know-how, trademarks, trade names, trade practices,
trade secrets and other proprietary information of the Company.
(b) CONSULTANT SHALL NOT DISCLOSE CONFIDENTIAL INFORMATION: The
Consultant will not, during the term of Company's engagement of
Consultant or following the termination of this Agreement, use,
show, display, release, discuss, communicate, divulge or
otherwise disclose Confidential Information to any person, firm,
corporation, association, or other entity for any reason or
purpose whatsoever, without the prior written consent or
authorization of the Company.
(c) SCOPE: Consultant's covenant in Subsection 5(b) not to disclose
Confidential Information shall not apply to information which, at
the time of such disclosure, may be obtained from sources outside
of the Company, or its agents, lawyers or accountants, so long as
those sources did not receive the information directly or
indirectly as the result of Consultant's act or omission.
(d) RETURN: Consultant agrees and acknowledges that all Confidential
Information is and shall remain the property of the Company, and
Consultant agrees to return all Confidential Material in
whatsoever form or format in his possession to the Company on
demand or within fifteen (15) days of termination of this
Agreement.
(e) COMPELLED DISCLOSURE: In the event a third party seeks to compel
disclosure of Confidential Information by the Consultant, the
Consultant shall promptly notify the Board of Directors of the
Company of such occurrence and furnish to the Board of Directors
a copy of the demand, summons, subpoena or other process served
upon the Consultant by judicial or administrative process, and
will permit the Company to assume, at its expense, but with the
Consultant's knowledge and cooperation, defense of such
disclosure demand. In the event that the Company refuses to
contest such a third party disclosure demand under judicial or
administrative process, or a final judicial order is issued
compelling disclosure or Confidential Information by the
Consultant, the Consultant shall be entitled to disclose such
information in compliance with the terms of such administrative
or judicial process or order.
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7. PROPRIETARY INFORMATION OF OTHERS
Consultant acknowledges that from time to time the Company may do business
with suppliers, customers and other actual or potential business associates
who may supply the Company with information of a confidential nature, and
that the Company may have an obligation to preserve the confidential nature
of any such information. Consultant agrees to treat any such information
received from suppliers, customers or other actual or potential business
associates as confidential, and as if it were the Confidential information
of the Company, or of any affiliates or subsidiaries of the Company, unless
advised otherwise by an officer of the Company.
8. AFFILIATE
The term "Company" when used in Sections 6, 7 and 10 of this Agreement
shall mean, in addition to the Company, any Affiliate of the Company. The
terms "Affiliate" or "Affiliates" when used in Sections 6, 7 and 10 of this
Agreement shall mean any corporation that controls the Company, or is
controlled by the Company, or is under common control with the Company.
9. ENTIRE AGREEMENT; MODIFICATION
This Agreement constitutes the full and complete understanding and
agreement of the parties with respect to the subject matter hereof, and
supersedes any prior understanding or agreement between the parties
relating hereto. No amendment, waiver or modification of any provision of
this Agreement shall be binding unless made in writing by the parties
hereto.
10. ASSIGNMENT
The rights and benefits of the Company and its permitted assigns under this
Agreement shall be fully assignable and transferable to any other entity:
(a) which is an affiliate of the Company; or
(b) with which the Company has merged or consolidated, or to which it
has sold substantially all of its assets in a transaction in
which such entity has assumed the liabilities of the Company
under this Agreement; and in the event of any such assignment or
transfer, all covenants and agreements hereunder shall inure to
the benefit of, and be enforceable by or against an affiliate or
the successors and assigns of the Company.
(c) Consultant may not assign this Agreement or any part hereof
without Company's prior written approval in each instance. Any
purported assignment in violation of the terms hereof shall be
void.
11. NOTICES
To be effective, all notices, consents or other communications required or
permitted hereunder shall be in writing. A written notice or other
communication shall be deemed to have been given hereunder (i) if delivered
by hand, when the notifying party delivers such notice or other
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communication to all other parties to this Agreement; (ii) if delivered by
telecopies or overnight delivery service, on the first business day
following the date of such notice or other communications transmitted by
telecopier or timely delivery to the overnight courier; or (iii) if
delivered by mail, on the third business day following the date such notice
or other communication is deposited in the U.S. mail by certified or
registered mail addressed to the other party. Mail or telecopied
communications shall be directed as follows unless written notice or a
change of address or telecopier number has been given in writing in
accordance with this Section:
If to Company: Xx. Xxxxxxxx X. Xxxxxxxxx, CFO
Trans World Gaming Corp.
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
If to Consultant: Xx. Xxxxxxx Xxxxxxxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier:
12. WAIVER
No waiver of any right, term, condition or covenant of this Agreement by a
party shall be deemed to be a waiver of any subsequent breaches of the same
or other terms, covenants or conditions hereof by such party.
13. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and all such counterparts shall constitute one
instrument.
14. CONSTRUCTION
Whenever possible, each provision of the Agreement shall be interpreted in
such manner as to be effective or valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
15. APPLICABLE LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York applicable to contracts made and performed in
that State.
16. NO THIRD PARTY BENEFICIARIES
Nothing is this Agreement shall entitle any person or entity (other than a
party hereto and its permitted assigns) to any claim, right, benefit or
remedy of any kind.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY: CONSULTANT:
TRANS WORLD GAMING CORP.
BY: __________________________ _____________________________
XXXXXXXX X. XXXXXXXXX XXXXXXX XXXXXXXXXX
CHIEF FINANCIAL OFFICER
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