Exhibit 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 9th day of March, 1999, by and between PDS FINANCIAL CORPORATION a
Minnesota Corporation, ("Employer"), and Xxx X. Xxxxxxx, XX ("Employee"), and
shall become effective on the 29th day of March, 1999.
WITNESSETH:
WHEREAS, Employer is in the business of providing equipment financing
and related financial advisory services to gaming and gaming related businesses
throughout the United States and Internationally, and reconditioning and buying
and selling used slot machines; and
WHEREAS, Employer desires to secure the benefits of Employee's
continued services as well as the benefits of Employee's background, knowledge,
experience, ability, and expertise to promote and maintain Employer's growth,
viability and profitability; and
WHEREAS, Employee is desirous of being employed by Employer in
accordance with the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties do hereby agree as
follows:
I. NATURE OF EMPLOYMENT AND DUTIES OF EMPLOYEE
1.01 Employee is hired and shall serve as Vice President and
General Counsel with duties, powers and responsibilities
consistent with such position, as set forth on EXHIBIT 1
attached hereto and incorporated herein by this reference.
Employee shall do and perform all services, acts or things
necessary or advisable to manage and conduct the business of
Employer, as set forth in EXHIBIT 1. Employee agrees to devote
substantially his full energies, abilities and productive time
to the Employer's business and to the performance of his
assigned duties, to discharge those duties in a diligent and
professional manner, and not to engage in any other activities
that would materially interfere with the performance of his
duties under this Agreement or engage in any activity
competitive with or adverse to the Employer's business or
welfare.
Employer may assign Employee to another position commensurate
with Employee's training, skills or experience so long as the
position is acceptable to both parties and compensation paid
to Employee is equal to or greater than the compensation
provided in this Agreement.
II. TERM OF EMPLOYMENT
2.01 Employer hereby employs the Employee and Employee hereby
agrees to his employment with the Employer for a period of
three (3) years commencing as of the Date of this Agreement.
2.02 As used herein, the phrase "Employment Term" refers to the
entire period of employment, including the Initial Employment
Term and any extensions agreed to by the mutual consent of
Employer and Employee.
2.03 Renewal of Employment Term - The Employment Term shall
automatically renew for consecutive additional periods of one
(1) year unless at least thirty (30) days prior to the
expiration of the Initial Employment Term or any extension
thereof either party shall notify the other in writing of its
decision to not renew the Agreement.
III. TERMINATION
3.01 Notwithstanding the specific provisions of Section II above,
the Employment Term may be terminated as set forth herein:
3.02 Termination for Cause - Employer may terminate the Employment
Term at any time without notice upon the occurrence of any of
the following events:
(i) Death of Employee; or
(ii) The conviction of Employee in a court of law of any
offense involving money or other property or of any
crime that constitutes a felony, or any misdemeanor
involving moral turpitude; or
(iii) A determination by a licensed physician of the state
of which Employee maintains his permanent residence
that Employee is mentally incompetent or chemically
dependent; or
(iv) Employee's repeated and/or willful violation of
specific written directions of the Board of
Directors, or the President of Employee, or policies
set forth in Employer's Employee Handbook, or other
policies of the Employer; or
(v) Employee's repeated and/or willful failure to perform
his job duties after written notice by the Employer's
CEO, President or Board of Directors; or
(vi) A determination that any statement, representation or
warranty made to Employer by Employee shall be false
or misleading; or
(vii) Employee's inability to perform a substantial portion
of his usual and customary duties, because of illness
or sickness for a total of 45 days within any period
of 12 consecutive months;
(viii) A determination by Employer's President or Board of
Directors that Employee has engaged in any conduct
which jeopardizes Employer's federal, state,
sovereign, or local governing authority licensing or
other approvals deemed material by Employer; or
(ix) inability or failure to obtain and/or retain
requisite licenses, permits and authorizations
required by the various gaming jurisdictions of
individuals for the position of Executive Vice
President/General Counsel.
3.03 Termination by Employee - Employee shall have the right to
terminate the Employment Agreement upon the insolvency or
bankruptcy of Employer. Employee may terminate this Agreement
with a thirty (30) days notice in the event that any person,
group of entity acquires a 50% or more equity position, proxy
control or management control that in fact results in a
material diminution or loss of Employee's authority or
management prerogatives. If employee terminates this Agreement
because of such action, Employee shall be entitled to one (1)
years Base Compensation in effect at the time of said action.
The amount shall be payable in a single payment due within 30
days of completion of the sale.
3.04 Termination Without Cause - Employer shall have the right to
terminate the Employment Term at any time and for any reason
with or without cause upon Thirty (30) days written notice to
Employee. In the event of such termination without cause, and
only under these circumstances, Employer shall pay to Employee
a Severance Benefit equal to one (1) years Base Compensation
to be paid on the last day of the notice period.
3.05 Termination by Mutual Consent - The Employment Term may be
terminated at any time with the mutual consent of Employer and
Employee, and upon mutually acceptable terms.
IV. COMPENSATION
4.01 Base Salary - Employee shall receive a Base Salary equal to
$10,416.00 per month, payable in equal installments on the
fifteenth and last day of each month or more often at the
election of Employer. Increases in the base salary for
subsequent years will be based on performance evaluation,
profitability, and according to percentages to be determined
by the Employer's CEO or Board of Directors.
4.02 If PDS Financial Corporation's annual net income exceeds the
amount approved by the Board of Directors and President, the
Employer agrees to pay Employee a performance bonus of not
less than 10% of his annualized Base Compensation. For
purposes of calculating any performance bonuses referred to
herein, Net Income shall be determined by the unaudited
internal financial statements of Employer. Net Income shall be
the net profit after taxes but before any distribution to
shareholders. Performance bonuses shall be paid by Employer
within ten (10) business days after the preparation of
financial statements of Employer for the periods to which such
bonuses relate.
4.03 Employee shall receive a monthly automobile allowance of
$400.00 which will be added to the Base Compensation.
4.04 Employee shall receive a signing bonus of $5,000 payable on
his first paycheck as a full-time employee.
4.05 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. Upon submission of proper documentation
Employer will pay or reimburse Employee for the following
employee's fees: Nevada and Xxxxx County Bar Association,
International Association of Gaming Attorneys (IAGA) and
Continuing Legal Education (CLE) not to exceed $3,000.00 per
year.
4.05 Stock Options - Upon the date of hire Employer will grant to
Employee options to purchase 40,000 shares of the Employer's
common stock which shall vest over a Five (5) year period.
Employee's stock option rights will be more fully defined in a
separate agreement.
4.06 Benefits - Employee will be reimbursed for the cost of
continuation of the employee's coverage under his current
medical plan until entitled to Employer's medical coverage.
Thereafter, employee will be entitled to all 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.
V. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
During the course of his 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, its
personnel 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 herself 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.
VI. COVENANT NOT TO COMPETE
6.01 During the Employment Term and for a period of six (6) months
following the termination of the employment, for whatever
reason, 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 it's 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.
6.02 During the Employment Term and for a period of six (6) months
following the termination of the employment, for whatever
reason, Employee agrees not, directly or 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.
6.03 During the Employment Term and for a period of six (6) months
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.
VII. MISCELLANEOUS PROVISIONS
7.01 Governing Law - This Agreement shall in all respects be
subject to, and governed by, the laws of the State of Nevada.
7.02 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.
7.03 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.
7.04 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.
7.05 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: Xxx X. Xxxxxxx, XX
0000 Xxxxxxxx Xxx Xxxxxx
Xxx Xxxxx, XX 00000
EMPLOYER: PDS Financial Corporation
c/o Xxxxx Xxxx, Human Resources Manager
0000 XxXxxx Xx.
Xxx Xxxxx, XX 00000-0000
7.06 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.
7.07 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.
7.08 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.
7.09 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 non-prevailing 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
6.01, 6.02 or 6.03, the party who desires such relief shall be
entitled to seek such relief in the Eighth Judicial District
Court of the State of Nevada.
7.10 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.
7.11 Headings - The various headings in this Agreement are inserted
for convenience only and are not part of this Agreement.
EMPLOYEE:
/s/ Xxx X. Xxxxxxx, XX
---------------------------
Xxx X. Xxxxxxx, XX
EMPLOYER:
PDS FINANCIAL CORPORATION
/s/ [ILLEGIBLE]
---------------------------
Its: President/CEO
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EXHIBIT 1
Performs General Counsel duties, prepares, negotiates and reviews documents
pertaining to leases, contracts and any other legal issues as it pertains to the
company by performing the following duties:
ESSENTIAL DUTIES AND RESPONSIBILITIES include the following. Other duties may be
assigned.
Prepares transaction documents and compiles other legal requirements of credit
facilities.
Reviews compliance regulations, correspondent litigation matters and advises
management on same.
Negotiates in conjunction with the Credit Department, modifications to documents
with customer's legal staff.
Prepares legal files and follow-up for documents consistent with approvals.
Prepares corporate documentation, letters and opinions and advises management as
to legal requirements in connection with preparation of documents, negotiation
of contracts, licensure requirements or other legal matters.
Prepares and reviews public records searches, as required on transactions or
company business.
Directs outside legal in litigation issues or other issues that may require
outside counsel.
SUPERVISORY RESPONSIBILITIES
Directly supervises one employee in the Legal Department. Carries out
supervisory responsibilities in accordance with the organization's policies and
applicable laws. Responsibilities include interviewing, hiring, and training
employees; planning, assigning, and directing work; appraising performance;
rewarding and disciplining employees; addressing complaints and resolving
problems.
