AGREEMENT AND COVENANT NOT TO COMPETE OR
USE OR DISCLOSE TRADE SECRETS
THIS Noncompetition and Confidentiality Agreement is made and entered
into this 17th day of August, 1999, by and between XXXXX XXXXX (the
"EMPLOYEE") and HARVEYS CASINO RESORTS, a Nevada corporation, (the
"EMPLOYER"):
RECITALS
WHEREAS, EMPLOYER is one of the limited entities engaged in the hotel
and gaming establishment business in Council Bluffs, Iowa holding a
"Non-restricted License" and hold a excursion boat gambling license under
Chapter 99F of the Iowa Code (the "Business"); and
WHEREAS, EMPLOYEE and EMPLOYER simultaneously herewith have executed an
agreement whereby EMPLOYEE is employed by EMPLOYER as the Senior
Vice-President/General Manager of Harveys Hotel/Casino in Council Bluffs,
Iowa (the "Employment Agreement"); and
WHEREAS, EMPLOYEE acknowledges and agrees that EMPLOYER was induced into
executing the Employment Agreement with EMPLOYEE in material reliance upon
EMPLOYEE'S executing and being bound by this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein and in the Employment
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto intending
to be legally
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bound hereby, agree as follows:
AGREEMENT
1.01 SCOPE AND TERM. During the term of EMPLOYEE'S employment with
EMPLOYER, and for any period of time thereafter during which EMPLOYEE
receives any compensation, including severance compensation, under the
Employment Agreement, executed simultaneously herewith, or any addition or
extension thereof (the "Restricted Period"), EMPLOYEE warrants, represents and
agrees that he shall not in any city, town, county, parish or other
municipality located within a seventy-five (75) mile radius of Council Bluffs,
Iowa, or Harveys Hotel/Casino located at Council Bluffs, Iowa, where the
EMPLOYER or any of its subsidiaries, affiliates, successors or assigns engages
in the Business directly or indirectly, do any of the following: (A) engage in
the Business for the EMPLOYEE'S OWN ACCOUNT; (B) enter the employ of, or render
any services to or for any entity that is engaged in the Business; and/or (C)
become interested in any such entity in any capacity, including as an employee,
partner, stockholder, officer, principal, agent, trustee or consultant;
provided, however, the EMPLOYEE may own solely as a passive investment,
securities of any entity traded on any national securities exchange or automated
quotation system if the EMPLOYEE is not a controlling person of such entity and
does to beneficially own the percent (3%) or more of any class of securities of
such entity. The duration of the Noncompetition as defined in this paragraph
1.01 shall be extended for an additional period of
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365 days if EMPLOYEE terminates pursuant to paragraph 4.02 or EMPLOYER
terminates EMPLOYEE pursuant to paragraph 5.01 of the Employment Agreement
executed simultaneously herewith, or any addition or extension thereof.
1.02. NONINTERFERENCE. During the Restricted Period, EMPLOYEE shall
not directly or indirectly (i) solicit, induce or attempt to solicit or
induce any person known to EMPLOYEE to be an employee of EMPLOYER or any of
its subsidiaries, affiliates, successors or assigns, that is involved in the
Business to terminate his or her employment or other relationship with
EMPLOYER or any of its subsidiaries, affiliates, successors or assigns for
the purpose of associating with (A) any entity of which EMPLOYEE is or
becomes an employee, offer, director, partner, stockholder, agent, trustee or
consultant or (B) any competitor of EMPLOYER or any of its subsidiaries,
affiliates, successors or assigns in the Business; or (C) otherwise encourage
any person to terminate his or her employment or other relationship with
EMPLOYER or any of its subsidiaries, affiliates, successors or assigns for
any other purpose or no purpose.
1.03.NONSOLICITATION. During the Restricted Period, EMPLOYEE shall not,
directly or indirectly, solicit, induce or attempt to solicit or induce any
customers, clients, vendors, suppliers or consultants in the Business then under
contract to EMPLOYER or any of its subsidiaries, affiliates, successors or
assigns (a "Customer or Supplier") to terminate his, her, or its relationship
with
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EMPLOYER or any of its subsidiaries, affiliates, successors or assigns for
any purpose, including the purpose of associating with or becoming a customer
or supplier of or consultant to (whether or not exclusive) of EMPLOYEE or any
entity of which EMPLOYEE is or becomes an employee, partner, stockholder,
officer, director, principal, agent, trustee or consultant, or otherwise
solicit, induce or attempt to solicit or induce any such Customer or Supplier
to terminate his, her or its relationship with EMPLOYER or any of its
subsidiaries, affiliates, successors or assigns for any other purpose or no
purpose.
1.04. CONFIDENTIAL INFORMATION. EMPLOYEE acknowledges that he will have
access to proprietary information, trade secrets and confidential material
(including, but not limited to, accounting information, business plans, lists
of key personnel, customers, clients, vendors, suppliers, distributors and
consultants) of the EMPLOYER (the "Confidential Information"), EMPLOYEE
agrees that upon termination of his employment with EMPLOYER, EMPLOYEE shall
not be entitled to keep or preserve any of EMPLOYER'S records, documents or
other materials evidencing Confidential Information. EMPLOYEE further agrees
without limitation in time or until such information shall become public
other than by the EMPLOYEE'S unauthorized disclosure, to maintain the
confidentiality of and refrain from disclosure or otherwise using in any
respect the Confidential Information to the detriment of EMPLOYER.
1.05 REMEDIES UPON BREACH. If EMPLOYEE breaches or threatens
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to breach any term, covenant, or provision of this Agreement, EMPLOYEE agrees
that EMPLOYER shall be entitled to injunctive relief, both PENDENTE LITE and
permanently without the requirement of the posting of a bond since the remedy
at law would be inadequate or insufficient. In addition, EMPLOYER shall be
entitled to require the EMPLOYEE to account for and pay to the EMPLOYER all
compensation, profits, monies, accruals, increments or other benefits derived
or received by the EMPLOYEE by reason of such breach.
1.06 SEVERABILITY OF COVENANTS. If any provision of this Agreement, as
applied to any part or to any circumstances, shall be adjudged by a court to
be invalid or unenforceable, the same shall in no way affect any other
provision of this Agreement, the application of such provision in any other
circumstances, or the validity or enforceability of this Agreement. If any
provision, or any part hereof, is held to be unenforceable because of the
duration of such provision or the area covered hereby, the parties hereto
agree that the court making such determination shall have the power to reduce
the duration and/or area of such provisions, and/or to delete specific words
or phrases ("blue-penciling"), and in its reduced or blue-penciled form, such
provision shall then be enforceable and shall be enforced.
1.07 ENFORCEABILITY IN ALL JURISDICTIONS. The parties hereto intend to
and hereby confer jurisdiction to enforce the terms, covenants and provisions
contained herein upon the courts of any
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xxxxx xx xxx Xxxxxx Xxxxxx and any other governmental jurisdiction within the
geographical scope of such covenants. If the courts of any one or more such
states or jurisdictions shall hold such covenants wholly unenforceable by
reason of the breadth of such scope or otherwise, it is the intention of the
parties hereto that such determination shall not bar or in any way affect
EMPLOYER'S right to the relief provided above in the courts of any other
state or jurisdiction within the geographical scope of such covenants, as to
breaches of such covenants and such respective states or jurisdictions, the
above covenants as they relate to each state or jurisdiction being, for this
purpose, severable into diverse and independent covenants.
1.08 ATTORNEYS' FEES. In the event that action, either legal or
equitable, is instituted by EMPLOYER to enforce and/or interpret this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party hereto of court costs, reasonable attorneys' fees and
accountants' fees incurred in connection therewith.
1.09 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned in whole or
in part, by the EMPLOYEE without the prior written consent of the EMPLOYER.
The EMPLOYER and any of its subsidiaries, affiliates, and successors may
sell, assign, or otherwise transfer any or all of its or their right and
interest in the Business, whether by operation of law or otherwise, and in
this Agreement, in
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which case this Agreement shall remain in full force after such sale,
assignment or other transfer.
1.10 GOVERNING LAW. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of Nevada, regardless of
the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
1.11. ENTIRE AGREEMENT. This Agreement and the Employment Agreement by
and between the EMPLOYEE and the EMPLOYER, dated as of the date hereof,
represent the entire agreement of the parties with respect to the subject
matter hereof and shall supersede any and all previous contracts,
arrangements or understandings between the parties hereto and with respect to
the subject matter hereof. This Agreement may not be modified or amended
except by an instrument in writing signed by each of the parties hereto.
///
///
///
///
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
DATED this _____ day of __________, 1999.
EMPLOYEE:
-------------------------------
XXXXX XXXXX
EMPLOYER:
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HARVEYS CASINO RESORTS,
a Nevada corporation
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------
XXXXXXX X. XXXXXXX,
President/Chief Executive
Officer
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