EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 1st
day of February, 1998, by and between PDS Financial Corporation, a Minnesota
Corporation (hereinafter referred to as "Employer"), and Xxxxx X. Xxxxxx
(hereinafter referred to as "Employee").
R E C I T A L S
WHEREAS, Employer is in the business of providing financing, leasing and
equipment sales to the gaming industry.
WHEREAS, Employee will act as President and Chief Executive Officer of
Employer;
and
WHEREAS, Employer and Employee desire to renew and amend Employee's
Employment Agreement pursuant to the terms of this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto intending legally to be bound, hereby agree as
follows:
1. APPOINTMENT. Employer hereby employs Employee as President and Chief
Executive Officer pursuant to the terms and provisions of this Agreement.
Employee hereby agrees to use his best efforts on behalf of Employer pursuant to
the terms of this Agreement.
2. DUTIES. Employee shall carry out such duties commensurate with the
title of President and Chief Executive Officer and such other duties as shall be
assigned to him by Employer's Board of Directors.
3. TERM. The term of employment ("Term of Employment" or "Term") shall
commence February 1, 1998, and shall continue for five (5) years unless
terminated by either party pursuant to the terms of this Agreement
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4. TERMINATION. Notwithstanding the specific provisions of Paragraph 3
hereof, the Term of Employment may be terminated as set forth herein.
4.1 TERMINATION FOR CAUSE. Notwithstanding any provision to the
contrary, the Term of Employment may be terminated immediately by Employer
at any time, without notice and shall be deemed terminated for cause, upon
the occurrence of any of the following events:
4.1.1. The conviction of Employee in a court of law of any
crime that constitutes a felony which involves dishonest or moral
turpitude; or
4.1.2. Employee's continued, repeated and willful violation of
specific written directions of the Board of Directors; or
4.1.3. Employee's repeated and/or willful failure to perform
his duties in accordance with the provisions of this Agreement after
written notice from the Board of Directors and Employee's failure or
refusal to resolve such matters within a reasonable period of time.
In the event of termination for cause, Employee shall not be entitled to
receive salary, severance pay or employee benefits other than as required
by law.
4.2 TERMINATION OF CONTRACT BY EMPLOYEE. Notwithstanding anything to
the contrary in this Agreement, Employee shall have the right to terminate
the Term of Employment at any time, upon thirty (30) day's notice to
Employer. Employer shall have the option to require Employee to work
during the notice period, or may accept Employee's resignation effective
immediately
4.3 OTHER TERMINATION. In the event of Employee's death or if
Employee is determined by a licensed physician of the state in which
Employee maintains his permanent residence to be mentally incompetent,
Employer may terminate this Agreement; provided, however, that Employee or
Employee' surviving spouse or heirs, as the case may be, shall receive
Employee's Base Salary for the remaining Term of this Agreement, or for two
years, whichever is greater, which sum shall be payable in equal
installments on the 1st and 15th day of each month during the remaining
Term.
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5. COMPENSATION. For all services to be rendered by Employee, during the
first year of this Agreement, Employee shall receive a salary equal to $27,083
per month, payable in equal installments on the 1st and 15th day of each month
or any other period designated by the Company, subject to annual increases as
recommended by the Compensation Committee and approved by the Board of
Directors.
As additional compensation to Employee during the Term of this Agreement,
Employer's Board of Directors shall establish and approve on an annual basis EPS
(Earnings per share) Projections for Employer (the "Approved Projections"),
which shall become an attachment to the agreement. If Employer achieves and
maintains 50 percent of the Approved Projections for any year (the "Base
Level"), Employer shall pay to Employee, as additional compensation, a sum equal
to $50,000. If Employer achieves 75 percent of the Approved projections during
any year, Employer shall pay to Employee, as additional compensation, an
additional $50,000. If Employer achieves 100 percent of the Approved
Projections, Employer shall pay to Employee, as additional compensation, an
additional $50,000. For every 25% above 100% that Employer achieves during any
year, Employer shall pay to Employee, as additional compensation, an additional
$50,000 per increase, pro rata.
6. EXPENSES - Upon submission of proper vouchers or receipts, Employer
will pay or reimburse Employee for authorized travel or entertainment expenses
relating to Employer's customers and other employees as are reasonably incurred
by him in accordance with Employer's entertainment expense policies and in
connection with the business of Employer, during the Term of Employment.
7. BENEFITS - Employee will be entitled to benefits as outlined in the
Employee Handbook which includes insurance, retirement and other benefits as are
generally available to salaried employees of Employer, subject to any
limitations on such benefits to officers, directors or highly paid employees in
order that such benefit programs qualify under Federal or State law for favored
tax or other treatment. Such benefits may be changed from time to time by
Employer.
Employer agrees to provide Employee with an automobile of Employee's selection
and Employer shall reimburse Employee for all expenses incurred in connection
with insurance, maintenance and use of said automobile. In the event of
termination of this Agreement, Employer shall transfer title to the vehicle
to Employee for a sum equal to the net book value of the automobile, which
shall be considered additional compensation to Employee.
Company will provide Employee with Life Insurance renewable annually to be paid
to his designated beneficiary in the amount not to exceed an annual premium of
$20,000.00.
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If during the Term of Employment, Employer is sold either through a transaction
involving the sale of a majority of Employer's stock to a single purchaser (or
to a group of purchasers) or through a transaction involving the sale of the
majority of Employer's assets, Employer shall pay to Employee a Sale Bonus equal
to two (2) years of Base Compensation in effect at the time of the sale. The
Sale Bonus shall be payable in a single payment due within 30 days of completion
of the sale. In addition to the Sale Bonus, if Employer is sold through a
transaction involving the sale of the majority of Employer's stock for a per
share price equal to 130% of the average stock price for the previous 180 days,
Employer shall pay to Employee a Premium Bonus equal to two (2) years of the
Base Compensation in effect at the time of the sale. The Premium Bonus shall be
payable in a single payment due within 30 days of completion.
8. STOCK OPTIONS - Employer will grant to Employee 25,000 options per
year to purchase shares of Employer's common stock over a five-year period.
Employee's stock option rights will be more fully defined in a separate
agreement.
10. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. During the course of
employment, Employee will have knowledge of Employer's process, data,
techniques, computer software or hardware, trade secrets, clients, plans for
marketing and expansion, and other information that is proprietary in nature
with respect to Employer and the conduct of Employer's business (collectively
"Confidential Information"). During the Employment Term and following the
termination of this employment, for whatever reason, Employee agrees not to
disclose, divulge, make public, or use to the detriment of Employer, whether for
the benefit of himself or others, any Confidential Information except as is
permitted or required in the performance of Employee's duties for Employer or as
is authorized in writing by Employer. Upon termination of Employee's
employment, he shall return to Employer all Confidential Information in whatever
format and including any and all copies. The covenants provided in this Section
shall survive the termination of Employee's employment and this Agreement.
11. COVENANT NOT TO COMPETE.
11.01 During the Employment Term and for a period of two (2) years
following the termination of the employment, for whatever reason, except as
excluded in Section 4.3., Employee agrees not directly or indirectly, to
engage in any business which is in competition with that of Employer within
the United States of America or Canada (including federally recognized
Indian reservations) (the "Territory"). For purposes of this provision,
Employee will be deemed to engage in a business by accepting employment
with, rendering service to, or participating as a shareholder, director,
officer, employee, consultant, independent contractor, sales representative
or serving in any capacity similar to the foregoing on behalf of said
business. A business shall be deemed to be in competition with Employer if
its primary business is leasing, financing, reconditioning or selling used
gaming or gambling equipment, or furniture, fixtures or equipment
designated for use or installation in gambling facilities, and/or it
engages in origination or securitization of leases involving gaming
equipment and/or gaming related equipment.
11.02 During the Employment Term and for a period of two (2) years
following the termination of the employment, for whatever reason, Employee
agrees not, directly or
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indirectly, on his own account or for another, to either solicit any customer
or business of Employer nor to divert any customer or business from Employer.
11.03 During the Employment Term and for a period of two (2) years
following the termination of the employment, for whatever reason, Employee
agrees not directly or indirectly, to solicit for employment or employ any
employee or independent contractor of Employer.
11.04 In consideration for the two (2) years non-compete period
the Employee will receive two (2) years of base salary paid monthly as
severance pay.
12. MISCELLANEOUS PROVISIONS
12.01 Governing Law - This Agreement shall in all respects be
subject to, and governed by, the laws of the State of Nevada
12.02 Severability - The invalidity or unenforceability of any
provision in the Agreement shall not in any way affect the validity or
enforceability or any other provision and this Agreement shall be construed
in all respects as if such invalid or unenforceable provision had never
been in the Agreement.
12.03 Waiver - A party's failure to insist on compliance or
enforcement of any provision of this Agreement, shall not affect the
validity or enforceability or constitute a waiver of future enforcement of
that provision or of any other provision of this Agreement by the party or
any other party.
12.04 If Employer requests that Employee assist in litigation or
administrative proceedings in which Employee has knowledge or had
involvement during Employee's term of Employment, Employer shall reimburse
Employee within 30 days for all documented and submitted expenses incurred
in providing such services.
12.05 Notice - Notices to or for the respective parties shall be
given in writing and delivered in person or mailed by certified or
registered mail, return receipt requested, addressed to the respective
party at the address set out below, or at such other address as either
party may elect to provide in advance in writing to the other party:
EMPLOYEE: Xxxxx X. Xxxxxx
EMPLOYER: PDS Financial Corporation
c/o Xxxxx Xxxxx, Human Resources Manager
0000 XxXxxx Xx.
Xxx Xxxxx, XX 00000-0000
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12.06 Assignment - This Agreement, together with any amendments
hereto, shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors, assigns, heirs and personal
representatives, except that the rights and benefits of either of the
parties under this Agreement may not be assigned without the prior written
consent of the other party.
12.07 Amendments - This Agreement may be amended at any time by
mutual consent of the parties hereto, with any such amendment to be invalid
unless in writing, signed by the Company and the Employee.
12.08 Entire Agreement - Except for the separate documents
referenced above, this Agreement contains the entire agreement and
understanding by and between Employer and Employee with respect to the
employment of Employee, and no representations, promises, agreements, or
understandings, written or oral, relating to the employment of the Employee
by Employer not contained herein shall be of any force or effect.
12.09 Binding Arbitration; Injunctive Relief - Any controversy,
dispute, or claim arising under this Agreement which cannot be resolved to
the mutual satisfaction of the parties hereto shall be determined by
arbitration in the City of Las Vegas, Nevada, pursuant to the provisions of
the Nevada Uniform Arbitration Act. If the parties can agree on the
selection of an arbitrator, then the decision or award of that arbitrator
shall be final and binding on the parties. If they are unable to agree on
the arbitrator, each party shall select one arbitrator within fifteen (15)
days after demand for arbitration, and the two arbitrators so selected
shall select a third arbitrator within fifteen (15) days following their
initial selection. Any decision by two of the three arbitrators shall be
final and binding on the parties. Any decision or award under this Section
7.09 may be entered and a judgment obtained thereon in the Eighth Judicial
District Court of the State of Nevada. The nonprevailing party shall
reimburse the prevailing party for its reasonable attorneys' fees and costs
incurred in connection with the arbitration and/or court action. In the
event that a violation of this Agreement warrants injunctive relief,
including a violation of Sections 11.01, 11.02 or 11.03, the party who
desires such relief shall be entitled to seek such relief in the Eighth
Judicial District Court of the State of Nevada.
12.10 Burden and Benefit - This Agreement shall be binding upon,
and shall inure to the benefit of, the Employer and Employee, and their
respective heirs, personal and legal representatives, successors, and
assigns.
12.11 References to Gender and Number Terms - In construing this
Agreement, feminine or neuter pronouns shall be substituted for those
masculine in form and vice versa, and plural terms shall be substituted for
singular and singular for plural in any place in which the context so
requires.
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12.12 Headings - The various headings in this Agreement are
inserted for convenience only and are not part of this Agreement.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed
the day and year first written above.
"EMPLOYER" "EMPLOYEE"
PDS FINANCIAL CORPORATION
By:
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Its: Xxxxx X. Xxxxxx
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