Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of June 1, 1998 (this "Agreement"), by and between
Xxxxxx'x Entertainment, Inc., a Delaware corporation (the "Company"), and X.
Xxxx Houssels, III (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive has heretofore been President and Chief Executive
Officer of Showboat, Inc., a Nevada corporation ("Showboat");
WHEREAS, Showboat will merge with HEI Acquisition Corp., ("HEI") an
indirect wholly-owned subsidiary of the Company pursuant to the Agreement and
Plan of Merger, dated December 18, 1997, (the "Merger Agreement") by and between
the Company, Showboat and HEI, whereupon Showboat will be a wholly-owned
subsididary of the Company.
WHEREAS, the Company desires to employ the Executive as the President of
Showboat and the Company's Showboat Division, and the Executive desires to
provide his services to the Company in such capacity, on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties set forth below, intending to be legally
bound hereby, the parties hereby agree as follows:
1. Employment. Subject to all of the terms and conditions set forth in
this Agreement, the Company agrees to employ the Executive as the President of
Showboat and the Company's Showboat division, and the Executive hereby accepts
such employment. Executive will be an employee of Xxxxxx'x Operating Company,
Inc. in Nevada. The term of employment contemplated hereby shall commence on the
date of the Filing of the Articles of Merger between Showboat and HEI with the
Nevada Secretary of State (the "Commencement Date") and shall end on the fourth
anniversary of the date hereof, unless sooner terminated as hereinafter provided
(the "Term").
2. Duties; Location.
(a) During the Term, the Executive shall perform all duties and
functions reasonably appurtenant to the office of
President of Showboat and the Company's Showboat Division, and as reasonably
directed by the Board of Directors or Chief Executive Officer of the Company.
The Executive hereby agrees that he will devote substantially all of his working
time, attention, knowledge and skills, faithfully, diligently, and to the best
of his ability, in furtherance of the business of the Company and as otherwise
necessary to such employment.
(b) It is also the intention of the parties that the Executive shall
serve as a director of the Company for the term ending not earlier than the
annual stockholders' meeting of the Company in 2001, whether or not the
Executive's employment is earlier terminated. Such service will be subject to
the Company's certificate of incorporation, bylaws and provisions of Delaware
law. Such election shall occur at a meeting of the Company's Board of Directors
on or before July 31, 1998. The Executive shall be entitled to no additional
remuneration for serving on the Board or as an officer or director of any other
subsidiary unless the Executive's employment is terminated prior to the end of
the Executive's terms as a director of the Company, in which event the Executive
shall then commence to receive all benefits provided to non-employee directors
of the Company.
(c) Executive shall be based in Las Vegas, Nevada unless the parties
mutually agree otherwise.
(d) Anything herein to the contrary notwithstanding, nothing shall
preclude the Executive from engaging in charitable, community and business
affairs, managing his personal investments and serving as a member of boards of
directors of industry associations or non-profit or for profit organizations and
companies so long as such activities do not materially interfere with the
Executive carrying out his duties and responsibilities under the Agreement and
are not competitive or in conflict with the Company's business per the Company's
Conflict of Interest policy.
3. Compensation.
(a) Salary. During the Term, the Executive shall receive an annual
base salary of $350,000, payable every two weeks and subject to applicable
withholding requirements. The Executive's salary shall be subject to appropriate
increases pursuant to the Company's compensation policy for senior executives
assigned to salary grade #33.
(b) During the Term, the Executive shall participate in the
Company's Annual Management Bonus Plan (the "Bonus Plan"), as amended from time
to time, or in any successor incentive bonus
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plans or programs applicable to senior executives that may be adopted from time
to time by the Company. For each year that the Executive is employed as of
December 31, the Executive's target award under the Bonus Plan shall be equal to
fifty percent (50%) of his annual salary. The maximum bonus available under the
Bonus Plan for any year shall be one hundred percent (100%) of the Executive's
annual salary. The amount of such award to the Executive shall be calculated
with reference to the attainment by the Company and by the Executive of
performance goals for the relevant year, which goals shall be established
pursuant to the Bonus Plan. Executive's 1998 bonus will be pro-rated for the
number of months he is employed by the Company during 1998.
(c) Stock Options. The Executive shall be eligible for participation
in the Company's Stock Option Plan, as amended from time to time, and in any
other equity compensation plans applicable to senior executives that may be
adopted from time to time by the Company. Under the Company's Stock Option Plan,
the Executive shall be entitled to an annual grant of options to purchase 70,400
shares of common stock par value $.10 per share of the Company (the "Common
Stock") which grant will be made on or about July 30, 1998 if the Merger closes
prior to that date. If the closing is later, the grant will be made as soon as
practicable after the closing. The initial grant of 70,400 options shall vest in
equal tranches (17,600 of such options per tranche) and become exercisable on
January 1 of each 1999, 2000, 2001 and 2002. Each such stock option shall have a
per share exercise price of one hundred percent (100%) of the fair market value
of the common stock on the date such option is granted. After 1998, Executive
will be eligible for annual 'long term' compensation grants per the terms and
operation of the Company's long term compensation plan as and when applicable to
executives of his grade level.
(d) Employment Benefit Programs.
(1) During the Term, the Executive and his dependents shall be
entitled, per the payment provisions applicable to other senior executives of
the Company, to participate in all medical, surgical, hospitalization, long term
disability, life, dental and visual insurance coverage now or hereafter made
available by the Company to its senior executives in Las Vegas or where he is
employed by the Company.
(2) During the Term, the Executive shall be entitled to
participate in all employee incentive programs of the Company now or hereafter
made available to the Company's senior executives or salaried employees
generally, as such programs may be in effect from time-to-time, including,
without limitation, pension and other retirement plans, profit-sharing plans and
holidays.
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(3) During the Term, the Executive shall be entitled to the
maximum PTO (paid time off) allowed for Company executives in Memphis at his
grade level. He will be able to accrue and cash in PTO time per the same plan
that applies to other executives.
(4) As of the Commencement Date, the Executive has accrued
285.33 hours of vacation time and 48 hours of sick leave time. The Executive
shall be entitled to transfer 80 hours of accrued vacation time and 48 hours of
accrued sick leave time to the Company's PTO plan which shall be treated in
accordance with Section 3(d)(3) hereof. In addition, upon the termination of the
employment of the Executive for any reason the Executive shall be entitled to
receive cash in the amount of $192.31 per hour for the portion of the 205.33
hours of acccrued vacation time that remains unused on the Date of Termination
(as defined below).
(5) During the Term, the Executive shall be eligible for
$7,500 annual allowance for executive financial counseling.
(6) During the Term, the Executive shall be eligible for the
Company's Executive Deferred Compensation Plan and Deferred Compensation Plan.
(e) Expenses. During the Term, the Executive shall be entitled to
receive reimbursement for all reasonable first-class travel and business
expenses incurred by him (in accordance with the policies and procedures of the
Company) in performing services hereunder, provided that the Executive promptly
and properly accounts therefor in accordance with the Company's expense
reimbursement policies.
4. Termination.
(a) Termination Without Cause. Executive may terminate his
employment upon at least 30 days prior written notice to the Company. The
Company may terminate Executive's employment upon at least 30 days prior written
notice to Executive.
(1) If, on or prior to the first anniversary of the
Commencement Date, (x) the Company terminates the employment of the Executive
other than (i) for Cause (as defined in Section 4(c) below) or (ii) on account
of the death of the Executive or (y) the Executive terminates his employment for
any reason, the Executive shall receive a payment of $1.1 million payable in
cash on the Date of Termination (as defined below) and the parties shall enter
into a consulting and non-compete agreement in the form attached as hereto Annex
A. In addition, the Executive shall receive the payments described in Section
3(d)(4) hereof.
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(2) If, after the first anniversary of the Commencement Date,
but prior to the expiration of the Term, the Company terminates the employment
of the Executive other than (i) for Cause (as defined in Section 4(c) below) or
(ii) on account of the death or Disability (as defined in Section 4(c) below) of
the Executive, the Executive shall continue to receive his salary set forth in
Section 3(a) for a period of eighteen (18) months following such termination but
will no longer participate in incentive bonus and equity compensation plans
including those under 2(b) and (c) of this Agreement. In all cases, Executive
shall receive payment of salary through the Date of Termination (as defined
below). In addition, the Executive shall receive the payments described in
Section 3(d)(4) hereof.
(b) Other Termination. In the event that the employment of the
Executive is terminated (i) due to the death or, after the first anniversary of
the Commencement Date, the Disability of the Executive, (ii) by the Company for
Cause or (iii) by the Executive after the first anniversary of the Commencement
Date, the Executive shall have no right to receive any compensation hereunder
after the Date of Termination except for the payments described in Section
3(d)(4) hereof.
(c) Definitions. For purposes of this Agreement, (i) "Disability"
shall mean the inability (as determined by the Board of Directors of the Company
in its sole discretion) of the Executive, as a result of incapacity due to
physical or mental illness or disability, to perform his duties with the Company
for six consecutive months or shorter periods aggregating six months during any
twelve-month period; and (ii) "Cause" shall mean the occurrence of one or more
of the following events: (A) any embezzlement or intentional misappropriation by
the Executive of any property of the Company or its affiliates (including any
violation of Section 5 of this Agreement), (B) the denial, revocation or
suspension of a license, qualification or certificate of suitability to the
Executive by any federal, state, local or tribal gaming authority to which the
Company is now subject or may be subject during the Term (collectively, the
"Gaming Authorities") or (C) the Executive's conviction or entry of a plea of
nolo contendere in respect of any felony, or of a misdemeanor which results in
or is reasonably expected to result in economic or reputational injury, to the
Company or any of its respective subsidiaries or affiliates.
(d) Notice of Termination. Any termination of the Executive's
employment by the Company (other than a termination due to the death of the
Executive) shall be communicated by a written notice of termination (the "Notice
of Termination") in accordance with the notice provisions hereof.
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(e) Date of Termination. For purposes of this Agreement, the "Date
of Termination" shall mean (i) if the Executive's employment is terminated by
his death, the date of his death, (ii) if the Executive's employment is
terminated due to Disability, ten days after delivery to the Executive of the
Notice of Termination, (iii) if the Executive's employment is terminated due to
his resignation, on the date of such resignation, and (iv) in any other case,
the date specified in the Notice of Termination.
5. Proprietary Information; Non-Disclosure. In the course of his service
to the Company and Showboat, the Executive has had and shall continue to have
access to confidential business and financial documents, product, marketing,
supplier and customer data, budgets, projections, expansion plans and other
business information, software and other intellectual property developed by the
Company, Showboat or their affiliates, all of which are confidential and
proprietary. Such information shall hereinafter be called "Proprietary
Information" and shall include any and all items enumerated in the preceding
sentence to which the Executive has had or may have access, whether previously
existing, now existing or arising hereafter, whether or not conceived or
developed by others or by the Executive alone or with others during the period
of his service to the Company and its predecessors, and whether or not conceived
or developed during regular working hours; provided, however, that "Proprietary
Information" shall not include (i) any information which is in the public
domain, provided such information is not in the public domain as a consequence
of disclosure by the Executive in violation of this Agreement or any other
nondisclosure obligation and (ii) any information that becomes available to the
Executive after he ceases to be an employee of the Company on a nonconfidential
basis from a source other than the Company or any of its affiliates. The
Executive shall not at any time, before or after the Term, disclose, directly or
indirectly (except as required by law and after consultation with the Company),
any Proprietary Information to any person or entity other than (A) the Company
or its affilates or (B) in the course of the Executive's service to the Company.
6. Severability. The provisions of this Agreement are severable, and the
invalidity of any provision shall not affect the validity of any other
provision. It is the intention of the parties that this Agreement be enforced to
the fullest extent permitted and, therefore, in the event that any provision of
this Agreement or the application thereof is held to be unenforceable in any
jurisdiction because of the duration or scope thereof, the parties hereto agree
that the court or panel of arbitrators making such determination shall have the
power to reduce the
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duration and scope of such provision to the extent necessary to make it
enforceable, and that the Agreement in its reduced form shall be valid and
enforceable to the full extent permitted by law, but no such reduction shall
affect the enforceability of the express terms hereof in any other jurisdiction.
7. Notices. Any and all notices or any other communication provided for
herein shall be made in writing by hand-delivery, first-class mail (registered
or certified, with return receipt requested), or overnight air courier
guaranteeing next day delivery, effective upon receipt, to the address of the
party appearing under his or its name below (or to such other address as may be
designated in writing by such party): (i) if to the Executive, to: X. Xxxx
Houssels, III, 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx, 00000,
and (ii) if to the Company to: Harrah's Entertainment Company, 0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000, Attn: Secretary.
8. Miscellaneous.
(a) Entire Agreement. This Agreement supersedes any other agreement,
whether written or oral, that may have been made or entered into between the
parties hereto and constitutes the entire agreement by the parties related to
the matters specified herein.
(b) Prior Agreement. This Agreement supersedes the Severance
Agreement dated November 1, 1994, between Showboat and the Executive (the
"Severance Agreement") and neither party thereto shall have any further
obligation thereunder, provided, however, that the Severance Agreement shall be
in full force and effect until the Commencement Date.
(c) Amendment; Waiver. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is agreed to in
writing signed by the Executive and a duly authorized officer of the Company
(other than the Executive). No waiver by any party hereto at any time of any
breach of another party hereto of, or compliance with, any condition or
provision of this Agreement to be performced by such other party shall be deemed
a waiver of any other provision hereof or any prior or subsequent breach of such
provision.
(d) Assignment. This Agreement shall be binding on and inure to the
benefit of the Company and its successors and assigns. This Agreement and all
rights hereunder are personal to the Executive and may not be assigned or
delegated by him without the prior express written consent of the Board of
Directors of the Company, and any purported assignment or delegation without
such consent shall be void and of no effect.
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(e) Captions. Captions herein have been inserted solely for
convenience of reference and in no way define, limit or describe the scope or
substance of any provision of this Agreement.
(f) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Nevada without giving effect to the
conflict of laws provisions thereof.
(g) Counterparts. This Agreement may be exected in counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties have signed and delivered this Agreement
as of the date first above written.
XXXXXX'X ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
/s/ X. Xxxx Houssels, III
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X. Xxxx Houssels, III
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ANNEX A
CONSULTING AND NON-COMPETITION AGREEMENT
THIS AGREEMENT, dated as of the _____ day of ____________, 1998, by and
between Xxxxxx'x Entertainment, Inc., a Delaware corporation, whose principal
place of business is 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx 00000 (hereinafter
referred to as "Xxxxxx'x") and X. Xxxx Houssels, III, an individual, whose
residence address is 0000 X. Xxxxxx Xxx #0000, Xxx Xxxxx, Xxxxxx 00000
(hereinafter referred to as "Consultant").
RECITALS
A. Consultant was an employee of Xxxxxx'x pursuant to an Employment
Agreement dated as of _________________, 1998.
B. Consultant's employment was terminated and Xxxxxx'x desires to engage
Consultant as an independent contractor to render consulting services for
Xxxxxx'x and its subsidiaries and affiliates upon the terms and conditions set
forth herein.
C. Consultant desires to be engaged by Xxxxxx'x as in independent
contractor to render consulting services to Xxxxxx'x upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto covenant and agree that the Recitals are true and correct and
further agree as follows:
SECTION 1
Consulting Services
A. Term of Engagement. Xxxxxx'x hereby engages Consultant, and Consultant
hereby accepts his engagement by Xxxxxx'x, as an independent contractor, to
render services in the capacity of a consultant, subject to the terms and
conditions set forth herein for a period of 1 year, commencing as of the first
day after Consultant's employment with Xxxxxx'x terminated (the "Commencement
Date"), and terminating as of the 366th day thereafter (the "Term").
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B. Consulting Services.
(i) The Consultant's services to be rendered hereunder shall
include, but not be limited to, the advising, directing, and/or assisting with
or the partial or complete handling of the matters described on Exhibit A
attached hereto (collectively, these duties shall be referred to as the
"Consulting Services").
(ii) The Consultant shall diligently and conscientiously devote the
necessary time and attention to the Consulting Services; provided, however, that
the time commitment required of the Consultant in undertaking and completing the
Consulting Services shall not exceed, in the aggregate, 875 hours during the
Term. In the event that the parties reasonably anticipate that the Consulting
Services shall require more than 875 hours during the Term, then the parties
shall mutually agree upon addition compensation for the anticipated additional
time required.
(iii) Xxxx Xxxxx, as Chief Executive Officer or a successor Chief
Executive Officer ("Xxxxx") shall have the exclusive authority to communicate
requests for Consulting Services desired of the Consultant. After such request,
Xxxxx and the Consultant will mutually agree and approve a reasonable schedule
for the performance of the requested Consulting Services which approval shall
not be unreasonably withheld by either party.
(iv) Notwithstanding Section I(B)(i) above, in no event shall the
Consulting Services include or require Consultant to (a) relocate or (b) travel
outside the continental United States of America except to Australia.
C. Reimbursements. Consultant will incur out-of-pocket expenses including
ordinary and necessary expenses such as travel, communication charges, copy
costs, mailing and courier service costs, secretarial costs and the like in
performing the Consulting Services hereunder for which he will be promptly
reimbursed by Xxxxxx'x. Consultant shall provide a detailed accounting, with
supporting documentation, of such expenses on a monthly or more frequent basis.
D. Independent Contractor. Consultant is entering into this Agreement and
in the performance of his duties hereunder as an independent contractor. No term
or condition under this Agreement nor any manner or method of payment hereunder
shall create any relationship between Xxxxxx'x and Consultant other than as
expressed in this Section I(D). Consultant shall not in any way, at any time, or
under any circumstances, be, or be construed to be, an employee, partner or
joint venturer of Xxxxxx'x.
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Section II
Non-Competition
A. Non-Competition. The Consultant acknowledges that reasonable limits on
his ability to engage in activities competitive with the Company are warranted.
Accordingly, the Consultant hereby covenants and agrees that during the Term, he
shall not, without the express prior written consent of the Company, directly or
indirectly, own, manage, operate, control, bid for, advise (or advise others
with respect to) or otherwise participate in, or be connected with, or become or
act as a partner, manager, member, director, officer, employee, consultant,
representative or agent of, any business, individual, partnership, firm,
corporation (other than the Company), limited liabililty company or other entity
which is in competition with, or is otherwise engaged anywhere in the United
States of America or Australia in the same business as, the business of the
Company and its subsidiaries as conducted on the date hereof (which business
includes the gaming and casino operations as presently conducted and as
presently proposed to be conducted); provided, however, that the Consultant may
purchase or own, solely as a passive investor, the securities of any entity if
(i) such securities are publicly traded on a nationally-recognized stock
exchange or on the Nasdaq Stock Market and (ii) the aggregate holdings of such
securities by the Consultant and his immediate family do not exceed five percent
of the voting power or one percent of the capital stock of such entity.
B. No Solicitation. The Consultant hereby agrees that during the Term he
shall not, directly or indirectly, for his own account or jointly with another,
or for or on behalf of any entity, as principal, agent or otherwise, (i) solicit
or induce or in any manner attempt to solicit or induce any person employed by
or acting as a consultant to or agent of the Company or any of its direct or
indirect subsidiaries to leave such position or (ii) interfere with, disrupt or
attempt to disrupt any relationship, contractual or otherwise, between the
Company or any of its subsidiaries any any of the customers, clients or
suppliers of the Company or any of its direct or indirect subsidiaries.
Section III
Compensation
A. Consulting and Non-Competition Fees. For and in copmlete consideration
of Consultant's full and faithful performance of the Consulting Services and
obligations, duties
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and non-competition covenants under this Agreement, Xxxxxx'x agrees to pay
Consultant compensation in the amount of Eight Hundred Thousand Dollars
($800,000.00) of which $400,000 shall be paid in respect of the non-competition
covenant (the "Non-Competition Fees") on the Commencement Date in funds
immediately available and $400,000 shall be paid in respect of the Consulting
Services (the "Consulting Fee") in 12 equal installments, in funds immediately
available, as follows:
(i) The first installment of the Consulting Fee shall be paid on the
Commencement Date.
(ii) The second through the twelfth installment of the Consulting
Fee shall be paid on the first day of each successive 30 day period following
the Commencement Date.
B. Taxes. Consultant shall be solely responsible for and shall pay when
due all federal, state and local income taxes and all other taxes due on his
behalf for any compensation or benefit received under this Agreement, including,
without limitation, all federal withholding taxes, FICA and Social Security, and
any worker's compensation premiums.
C. Insurance. Until the later of the end of the Term or two years after
the date hereof, at its sole expense, Xxxxxx'x shall provide Consultant with
complete and uninterrupted medical, dental, vision, life and disability
insurance as elected by Consultant, with available coverages substantially
equivalent to the insurance coverages offered by Xxxxxx'x to its senior
executives. To the extent required by the Internal Revenue Code of 1986, as
amended, as determined by Xxxxxx'x counsel to maintain the tax qualification of
its plans, the premium cost of such medical, dental, vision, and life insurance
provided to Consultant will be taxable income to Consultant and Xxxxxx'x will
provide a Form 1099 to Consultant reporting this income. This coverage is in
lieu of COBRA rigths (other than for spouse and dependent COBRA coverage for a
maximum period of 36 months from the date hereof).
Section IV
Termination
A. This Agreement, the non-competition covenant in Section II and the
engagement of Consultant by Xxxxxx'x and, subject to Section IV(B) below, any
installment fees payable to Consultant shall terminate prior to the expiration
of the Term, upon the occurrence of any one of the following events except the
non-
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competition covenant will not terminate until the end of the Term upon
Consultant's disability or upon termination of this Agreement upon the events
described in Section IV (A) (ii) or (iv):
(i) Upon Consultant's death, disability or incapacity;
(ii) Consultant's continuing or repeated breach of any material
terms and conditions of this Agreement following written notice to Consultant of
such breach and following a thirty (30) day period to cure such breach;
(iii) Upon thirty (30) days written notice from Xxxxxx'x to
Consultant; or
(iv) The denial, revocation or suspension of a license,
qualification or certificate of suitability to Consultant by any Gaming
Regulatory Agency (as defined in Section V) because of any action or failure to
act by Consultant that Xxxxxx'x reasonably believes, as a result of a
communication or action by any Gaming Regulatory Agency or on the basis of
consultation with its gaming counsel and/or professional advisers, will likely
cause any Gaming Regulatory Agency to: (A) fail to license, qualify and/or
approve Xxxxxx'x or an Affiliate to own or operate a gaming business; (B) grant
any such licensing, qualification and/or approval only upon terms and conditions
which are unacceptable to Xxxxxx'x or an Affiliate; (C) significantly delay any
such licensing, qualification and/or approval process; (D) discipline Xxxxxx'x
or an Affiliate; or (E) revoke or suspend any existing license of Xxxxxx'x or an
Affiliate. "Affiliate" shall mean Xxxxxx'x or any of its subsidiaries.
B. In the event that this Agreement is terminated prior to the expiration
of the Term pursuant to Section IV(A)(iii) above, Xxxxxx'x obligations pursuant
to (i) Section III(A), regarding payment of the Consulting Fee and the
Non-Competition Fee and (ii) Section III(C), regarding insurance coverage, shall
not be abrogated and Xxxxxx'x shall make the installment payments of the
Consulting Fee at the times specified in Section III(A) and continue all
insurance coverage as provided in Section III(C).
C. For purposes of this Agreement, determination of the disability or
incapacity of the Consultant shall be made by the normal or attending physician
of the Consultant.
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Section V
Regulatory Compliance
Consultant and Xxxxxx'x acknowledge and agree that any gaming authority
whose jurisdicition Xxxxxx'x or any Affiliate is subject to ("Gaming Regulatory
Agency") may assert a right to review and approve this Agreement, as well as a
right to insist that Consultant be licensed. Consultant and Xxxxxx'x each agree
to comply expeditiously with all such requests from any Gaming Regulatory
Agency. Xxxxxx'x shall pay all related costs and expenses incurred in connection
with such investigations and proceedings pertaining to Consultant while
Consultant remains engaged by Xxxxxx'x pursuant to this Agreement, except
disciplinary or enforcement proceedings against Consultant. Consultant and
Xxxxxx'x shall comply with and be bound by all decisions, opinions and orders
issued by any Gaming Regulatory Agency regarding this Agreement and any matter
related thereto.
Section VI
Indemnity
Xxxxxx'x shall idemnify the Consultant and hold him harmless for all acts
or decisions made by him in good faith in connection with performing the
Consulting Services. Xxxxxx'x shall also use its best efforts to obtain coverage
for him under any insurance policy now in force or hereinafter obtained during
the term of this Agreement covering the other officers and directors of Xxxxxx'x
against lawsuits. Xxxxxx'x shall pay all expenses including reasonable
attorney's fees, actually and necessarily incurred by the Consultant in
connection with the defense of such act, suit or proceeding, and in connection
with the defense of such act, suit or proceeding, and in connection with any
related appeal, including the cost of court settlements.
Section VII
Miscellaneous
A. Assignments. Neither party shall have the right to assign any rights or
obligations under this Agreement without the prior written aproval of the other
party other than an assignment to a successor of Xxxxxx'x.
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B. Attorney Fees. If either party to this Agreement breaches any of the
terms hereof, that party shall pay to the non-defaulting party all of the
non-defaulting party's costs and expenses, including reasonble attorney's fees,
incurred by that party in enforcing the terms of this Agreement.
C. Headings. The headings have been inserted for convenience only and are
not to be considered when construing the provisions of this Agreement.
D. Authority/No Violation. Xxxxxx'x represents and warrants that it is
fully authorized and empowered to enter into this Agreement and that the
performance of its obligations under this Agreement will not violate any
agreement between it and any other person, firm or organization. The Consultant
represents that he knows of no agreement between him and any other person, firm
or organization that would be violated by the performance of his obligations
under this Agreement.
E. Compliance with Laws. At all times during the term hereof, each party
agrees that its actions and those of its representatives, agents and consultants
will be entirely in accordance with all applicable laws, rules, ordinances and
regulations of all states, countries, and municipalities in which such party
conducts business. In connection with this Agreement, Consultant acknowledges
that there exist certain casino gaming licenses currently issued to Xxxxxx'x and
its Affiliates, the laws of which may require Xxxxxx'x to disclose private or
otherwise confidential information about Consultant. Consultant agrees to
refrain from all conduct that may negatively affect such licenses as well as
prospective licenses.
F. Cooperation. The Parties agree to cooperate fully with each other in
order to achieve the purposes of this Agreement and to take all actions not
specifically described that may be required to carry out the purposes and intent
of this Agreement.
G. Modification of Agreement. Any modification of this Agreement or
additional obligation assumed by either party in connection with this Agreement
shall be binding only if evidenced in writing signed by each party or an
authorized representative of each party.
H. Notices. Any notice provided for or concerning this Agreement shall be
in writing and be deemed sufficiently given when sent by certified mail, return
receipt requested, Express Mail, Federal Express, or similar conventional means
of expedited delivery and proof of delivery, to the respective address of each
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party as set forth at the beginning of this Agreement. A copy of a notice to
Xxxxxx'x shall also be provided to Xxxxxx'x General Counsel at the same address.
Any change of address for notices shall be given to all parties by notice in
writing the receipt of which is duly acknowledged in writing or sent certified
mail to the then proper address of each other party.
I. Governing Law. It is agreed that this Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of Nevada.
J. Severability. The invalidity of any portion of this Agreement will not
and shall not be deemed to affect the validity of any other provision. In the
event that any provision of this Agreement is held to be invalid, the parties
agree that the remaining provisions shall be deemed to be in full force and
effect as if they had been executed by both parties subsequent to the
expungement of the invalid provision.
K. Survival. The obligations contained in Section VI, regarding Indemnity,
shall survive the expiration, cancellation or termination, for any reason
whatsoever, of this Agreement and shall continue in full force and effect.
L. Entire Agreement. This Agreement shall constitute the entire agreement
between the parties with respect to the matters described herein, and any prior
understanding or representation of any kind preceding the date of this Agreement
shall not be binding upon either party except to the extent incorporated in this
Agreement.
M. Dispute Resolution. Any and all claims, disputes, or controversies
arising between the parties hereto regarding any of the terms of this Agreement
or the breach thereof, on the written demand of either of the parties hereto,
shall be submitted to and be determined by final and binding arbitration held in
Memphis, Tennessee, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. This Agreement to arbitrate shall be
specifically enforceable in any state or federal court of competent
jurisdiction.
N. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
O. Neutral Interpretation. The provisions contained herein shall not be
construed in favor of or against any party because that party or its counsel
drafted this Agreement, but shall be construed as if all parties prepared this
Agreement, and any rules of construction to the contrary are hereby specifically
waived. The terms of this Agreement were negotiated at arm's length by the
parties hereto.
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P. Proprietary Information; Non-Disclosure. In the course of his service
to the Company and Showboat, Inc., the Consultant has had and shall continue to
have access to confidential business and financial documents, product,
marketing, supplier and customer data, budgets, projections, expansion plans and
other business information, software and other intellectual property developed
by the Company, Showboat or their affiliates, all of which are confidential and
proprietary. Such information shall hereinafter be called "Proprietary
Information" and shall include any and all items enumerated in the preceding
sentence to which the Consultant has had or may have access, whether previously
existing, now existing or arising hereafter, whether or not conceived or
developed by others or by the Consultant alone or with others during the period
of his service to the Company and its predecessors, and whether or not conceived
or developed during regular working hours; provided, however, that "Proprietary
Information" shall not include (i) any information which is in the public
domain, provided such information whic is in the public domain as a consequence
of disclosure by the Consultant in violation of this Agreement or any other
nondisclosure obligation and (ii) any information that becomes available to the
Consultant after he ceases to be an employee or Consultant of the Company on a
nonconfidential basis from a source other than the Company or any of its
affiliates. The Consultant shall not at any time, during or after the Term,
disclose, directly or indirectly (except as required by law and after
consultation with the Company), any Proprietary Information to any person or
entity other than (A) the Company or its affiliates or (B) in the course of the
Consultant's service to the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives and to be effective as of the
date first above written.
XXXXXX'X ENTERTAINMENT, INC. CONSULTANT
a Delaware corporation
By:
----------------------- ----------------------
Name: X. Xxxx Houssels, III
Title:
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Xxxx Xxxxxxxx
Duties Under Consulting Agreement
o advise Xxxxxx'x CEO on strategic plans;
o advise and evaluate for the Xxxxxx'x CEO strategies for Star City;
o advise and consult with the Xxxxxx'x CEO on Xxxxxx'x relations with key
Showboat management and business associates;
o advise Xxxxxx'x CEO regarding marketing strategies and services for key
Showboat customers; and
o such other similar projects that may be assigned by Xxxxxx'x CEO
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