SEVERANCE AGREEMENT
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This Severance Agreement (the "Agreement") is made this 18th day of
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September, 1998, by and between G. Xxxxxx Xxx (hereinafter "Fox") and American
Bingo & Gaming Corp. (hereinafter "ABG").
WHEREAS Fox is a member of the Board of Directors of ABG;
WHEREAS Fox's continued participation as a member of the Board of Directors
of ABG will require a substantial amount of travel and time which will conflict
with Fox's other business commitments;
WHEREAS Fox and ABG have made a joint determination that, subject to
certain terms of separation being agreed to between Fox and ABG, it may be in
the best interest of Fox and ABG for Fox to resign from the Board of Directors;
and
WHEREAS ABG acknowledges with appreciation Fox's service to ABG and agrees
to accept Fox's resignation;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and the terms set forth below, the parties agree as follows:
1. Resignation. Fox hereby agrees that, subject to (i) the Board of
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Directors of ABG duly authorizing this Agreement, (ii) an authorized
officer of ABG executing and delivering to Fox this Agreement and
(iii) ABG taking each of the actions set forth herein, Fox will tender
his resignation from all positions held with ABG and its subsidiary
companies (if any).
2. Reimbursement. ABG does hereby agree to reimburse and pay to Fox as
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soon as reasonably possible, and in no event later than five business
days following the date of this Agreement, $17,000.
3. Stock Options. Fox has been duly issued options to purchase 27,000
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shares of ABG's Common Stock, par value $0.001 per share, (the
"Options") pursuant to ABG's 1997 Stock Option Plan (the "Plan"). ABG
does hereby represent and agree that it has or will contemporaneously
with the approval and execution of this Agreement (i) take all actions
necessary to accelerate Fox's right to exercise the Options to a time
prior to his planned resignation from the Board of Directors and (ii)
take all actions necessary to approve and confirm that Fox's Options
will not expire due to his resignation from the Board of Directors and
to assure that such Options will otherwise be exercisable by Fox
through April 20, 2003 in accordance with the terms of the Plan and
the agreement under which his Options were provided.
4. Post Resignation Remarks. ABG acknowledges with appreciation Fox's
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service to ABG and agrees that, except as may otherwise be required by
law, ABG shall not and shall advise and direct its officers,
directors, employees and agents within its control not to make, repeat
or publish any remark, comment or other statement in an attempt to
defame, disparage or detract from Fox's character, reputation,
professional standing or business. Likewise, Fox agrees that, except
as may otherwise be required by law, Fox shall not make, repeat or
publish any remark, comment or other statement in an attempt to
defame, disparage or detract from the character, reputation,
professional standing or business of ABG or any of its officers,
directors, employees or agents.
5. Confidentiality. Fox hereby acknowledges, represents and agrees that
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he will maintain the confidentiality of all information obtained
regarding ABG, including but not limited to its operations,
management, financial matters, plans and other material data, and that
he will not in any fashion, form or manner, either directly or
indirectly, divulge, disclose or communicate to any person, firm,
corporation or other business entity, in any manner whatsoever, any
such confidential information concerning ABG. However, Fox may
disclose any information required by law to be disclosed by Fox after
Fox has notified ABG of such requirement and given ABG the opportunity
to review the information to be disclosed.
6. Fox Global Release. ABG, on behalf of itself and on behalf of its
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officers and directors, hereby releases Fox from any and all past,
present or future claims, demands, actions, causes of action, costs,
judgments, expenses, attorney's fees, damages and all liabilities
whatsoever at law or in equity, whether known or unknown, that they
may have, claim to have, or have ever had, against Fox arising from
any and all causes of action, whether intentional, wanton, reckless,
malicious, negligent, grossly negligent, or inadvertent, in contract
or in tort, including any claims relating to any misrepresentations,
disclosures and/or failures to disclose in connection with all
matters, and including but not limited to those matters relating to
Fox's involvement on the Board of Directors of ABG. In this regard,
the parties to this Agreement intend for the release provided by this
Agreement to cause, to the fullest extent permitted by law and at
equity, the complete and final discharge and extinguishing of all
claims and causes of action against Fox, whether known or unknown,
involving the parties hereto, for all time up to and including the
date of this Agreement. ABG agrees to indemnify and hold Fox harmless
from and against any and all costs, judgments, expenses, attorney's
fees, damages or liabilities whatsoever relating to any and all claims
that may be brought against Fox in connection with his position as a
member of the Board of Directors of ABG to the fullest extent
authorized by Delaware law as provided in paragraph 7 of the
Certificate of Incorporation of ABG, as amended October 17, 1994.
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7. ABG Release. Except as expressly set out herein, Fox hereby releases
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ABG and its officers and directors from any and all past, present or
future claims, demands, actions, causes of action, costs, judgments,
expenses, attorney's fees, damages and all liabilities whatsoever at
law or in equity, whether known or unknown, that he may have, claim to
have, or have ever had, against ABG and its officers and directors
arising from any and all causes of action, whether intentional,
wanton, reckless, malicious, negligent, grossly negligent, or
inadvertent, in contract or in tort, including but not limited to any
claims relating to any misrepresentations, disclosures and/or failures
to disclose in connection with all matters, and including but not
limited to those matters relating to his Options, and those matters
relating to his position as a member of the Board of Directors of ABG.
In this regard, the parties to this Agreement intend for the release
provided by this Agreement to cause, to the fullest extent permitted
by law and at equity, the complete and final discharge and
extinguishing of all claims and causes of action against ABG, whether
known or unknown, involving the parties hereto, for all time up to and
including the date of this Agreement. The above notwithstanding, this
release shall not release ABG from (A) any of its obligations set out
in this Agreement, or (B) any release, defense, indemnity, right of
contribution or other recovery owed by ABG to Fox for any claims,
demands, actions, causes of action, costs, judgments, expenses,
attorney's fees, damages or liabilities whatsoever at law or in equity
to the extent this release, defense, indemnity, right of contribution
or other recovery would otherwise have been provided to Fox pursuant
to the terms of the current Certificate of Incorporation of ABG, the
current By-Laws of ABG or as otherwise provided by applicable law. In
addition, to the extent any insurance product would provide Fox any
protection, release, defense, indemnity, right of contribution or
other recovery relating to a claim, including but not limited to
director's and officer's insurance, this release shall not act to
release Fox's claim or rights to claim to the extent it would limit
his rights to the protections otherwise provided under those insurance
products, nor shall it be construed in a manner which in any way
reduces or eliminates coverage otherwise available to him under those
insurance products.
8. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of South Carolina.
9. Future Agreement. This Agreement comprises the entire agreement, oral
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and written, between and among the released parties with regard to the
subject matter of the Agreement. This Agreement may not be amended in
any respect except by writing, duly executed by the released parties
and/or the authorized representatives of the released parties.
10. Severability. If any provision of this Agreement or any portion of any
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provision of this Agreement is at any time deemed or declared void,
voidable or unenforceable, then such provision or portion of such
provision is severable from the remainder of the Agreement and the
remainder of this Agreement shall be fully enforced.
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11. Further Assurances. The parties shall from time to time promptly
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execute and deliver such further instruments, documents or papers and
perform all acts necessary or proper to carry out and effect the terms
and provisions of this Agreement.
12. Counterparts and Fax Signature Pages. It is understood and agreed that
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this Agreement may be executed in duplicate counterpart originals,
each of which shall be deemed an original for all purposes. Signatures
need not be in original and a facsimile and/or copy bearing a copied
or facsimile signature shall suffice as a binding signature for this
Agreement.
13. Supersedes Prior Agreements. It is understood and agreed that this
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Agreement contains the entire agreement between the parties and
supersedes any and all prior agreements and arrangements or
understandings between the parties relating to the subject matter
hereof. No oral understanding, statements, promises or inducements
contrary to the terms of this Agreement exist. This Agreement cannot
be changed or terminated orally.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
WITNESSES:
/s/ Xxxxxxx Xxxxxxx /s/ G. Xxxxxx Xxx
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G. Xxxxxx Xxx
WITNESSES: AMERICAN BINGO & GAMING CORP.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx, President and CEO
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