EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
November 8, 2000, between Hard Rock Hotel, Inc., a Nevada corporation (the
"Company"), and Xxx Xxxxx, an individual ("Executive").
PRELIMINARY STATEMENTS
A. The Company currently operates that certain hotel/casino resort
known as the "Hard Rock Hotel" located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxx.
B. The Company desires to employ Executive, and Executive desires to
be so employed, on the terms and conditions herein contained.
AGREEMENT
NOW, THEREFORE, in consideration of the various covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby employs Executive and
Executive accepts such employment commencing on the date of this Agreement
(the "Commencement Date") unless terminated as hereinafter provided or upon
the mutual agreement of the parties hereto. The Company will also cause any
successor company to be bound by the terms of this Agreement in the event of
a Change in Control as defined in Section 7.5.
2. SERVICES TO BE RENDERED.
2.1. DUTIES OF EXECUTIVE. Executive shall be employed to serve in
the capacity of Vice President of Finance and Chief Financial Officer of the
Company. Executive shall be responsible for the overall supervision,
direction, and control of the financial and accounting operations of the Hard
Rock Hotel facility. In addition, Executive will be responsible for the MIS,
Purchasing, Receiving, Warehouse, Risk Management, and Cage departments.
Executive shall devote his full business time, attention and ability to the
affairs of the Company during the term of this Agreement; PROVIDED, HOWEVER,
that Employee shall not be precluded from involvement in charitable or civic
activities or his personal financial investments provided that the same do
not interfere with his time and attention to the affairs of the Company.
Executive will report directly to the General Manager or such other persons
designated by the Board of Directors of the Company (the "Board").
3. COMPENSATION AND BENEFITS. The Company shall pay the following
compensation and benefits to Executive during the term hereof; and Executive
shall accept the same as payment in full for all services rendered by
Executive to or for the benefit of the Company:
3.1. BASE SALARY. Commencing on the Commencement Date, a base
salary (the "Base Salary") of $125,000 per annum. The Base Salary shall
accrue in equal bi-weekly installments in arrears and shall be payable in
accordance with the payroll practices of the Company in effect from time to
time.
3.2. ANNUAL BONUS. Executive shall be eligible to receive an
annual bonus (the "Annual Bonus") to be determined by the Board based upon
the achievement of the financial performance and other objectives of the
Company and Executive's contribution to such performance.
3.3. STOCK. Executive shall be entitled to participate in stock
option plans that the Company provides to its comparable senior executive
officers to the extent such plans are established by the Company.
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3.4. EXPENSES. The Company shall reimburse Executive for
reasonable out-of-pocket expenses incurred in connection with the performance
of his duties hereunder, subject to (i) such policies as the Board may from
time to time establish and (ii) Executive furnishing the Company with
evidence in the form of receipts satisfactory to the Company substantiating
the claimed expenditures.
3.5. VACATION. Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to
time for its comparable senior executive officers. Executive shall also be
entitled to all paid holidays given to the Company's comparable senior
executive officers.
3.6. BENEFITS. Executive shall be entitled to participate in the
Company's group insurance, hospitalization, and group health and benefit
plans and all other benefits and plans as the Company provides to its
comparable senior executive officers to the extent such plans are established
by the Company and to the extent that Executive is eligible to participate in
such plans.
3.7. WITHHOLDING AND OTHER DEDUCTIONS. All compensation payable to
Executive hereunder shall be subject to such deductions as the Company is
from time to time required to make pursuant to law, governmental regulation
or order.
4. FACILITIES. Executive shall be furnished with an office, supplies
and personnel which are necessary or appropriate for the adequate performance
by Executive of his duties as set forth in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. Executive represents
and warrants to the Company that (i) Executive is under no contractual or
other restriction or obligation which is inconsistent with the execution of
this Agreement, the performance of his duties hereunder, or the other rights
of the Company hereunder and (ii) Executive is under no physical or mental
disability that would hinder the performance of his duties under this
Agreement.
6. NON-DISCLOSURE; NON-SOLICITATION. During the term of this
Agreement and thereafter, Executive shall hold in a fiduciary capacity for
the benefit of the Company all secret or confidential information, knowledge
or data relating to the Company or its affiliates, and their respective
businesses, which shall not be public knowledge (other than information which
becomes public as a result of acts of Executive or his representatives in
violation of this Agreement), including, without limitation, customer/ client
lists, matters subject to litigation, and technology or financial information
of the Company or its subsidiaries, without the prior written consent of the
Company. In addition, during the term of this Agreement and for a two (2)
year period thereafter, Executive shall not, directly or indirectly, solicit
or contact any employee of the Company or any affiliate of the Company, with
a view to inducing or encouraging such employee to leave the employ of the
Company or its affiliates, for the purpose of being employed by Executive, an
employer affiliated with Executive or any competitor of the Company or any
affiliate thereof. Executive acknowledges that the provisions of this Article
6 are reasonable and necessary for the protection of the Company and that the
Company will be irrevocably damaged if such provisions are not specifically
enforced. Accordingly, Executive agrees that, in addition to any other relief
to which the Company may be entitled in the form of actual, the Company shall
be entitled to seek and obtain injunctive relief from a court of competent
jurisdiction (without posting a bond therefor) for the purpose of restraining
Executive from any actual or threatened breach of such provisions.
7. TERMINATION.
7.1. DEATH OR TOTAL DISABILITY OF EXECUTIVE. If Executive dies or
becomes totally disabled during the term of this Agreement, Executive's
employment hereunder shall automatically terminate. For these purposes
Executive shall be deemed totally disabled if Executive shall become
physically or mentally incapacitated or disabled or otherwise unable fully to
discharge Executive's essential duties hereunder for a period of ninety (90)
consecutive calendar days or for one hundred twenty (120) calendar days in
any one hundred eighty (180) calendar-day period.
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7.2. TERMINATION FOR GOOD CAUSE. Executive's employment hereunder
may be terminated by the Company for "good cause." The term "good cause is
defined as any one or more of the following occurrences:
(a) Executive's breach of any of the covenants contained in
Article 6 of this Agreement;
(b) Executive's conviction by, or entry of a plea of guilty
or nolo contendere in, a court of competent and final jurisdiction for any
crime and involving imprisonment in the jurisdiction involved;
(c) Executive's commission of an act of fraud, whether
prior to or subsequent to the date hereof upon the Company;
(d) Executive's continuing repeated willful failure or
refusal to perform Executive's duties as required by this Agreement
(including, without limitation, Executive's inability to perform Executive's
duties hereunder as a result of drug or alcohol related misconduct and/or as
a result of any failure to comply with any laws, rules or regulations of any
governmental entity with respect to Executive's employment by the Company);
(e) Executive's gross negligence, insubordination or
material violation of any duty of loyalty to the Company or any other
material misconduct on the part of Executive;
(f) Executive's commission of any act which is
materially detrimental to the Company's business or goodwill;
(g) the failure of Executive to obtain any requisite
license, permit or approval based on suitability from any state, county, or
other governmental authority having jurisdiction over the gaming operations
of the Company (the "Gaming Authorities") which would preclude Executive from
carrying out his duties as set forth in this Agreement;
(h) if, after the initial receipt by Executive of any
requisite license, permit or approval from the Gaming Authorities, the
execution of Executive's duties as set forth in this Agreement will, as
evidenced by communications from any senior official of any of the Gaming
Authorities, materially preclude or unduly delay the issuance of, or result
in the imposition of unduly burdensome terms and conditions on, or revocation
of, any liquor, gaming or other license, permit or approval, necessary or
appropriate to the proposed, contemplated or actual operations of the
Company; PROVIDED, HOWEVER, that this Section 7.2(h) shall not be applicable
if Executive shall, within a reasonable period of time after receipt of
written notice from the Board specifying the nature of the issues involved
hereunder, remedy the situation to the satisfaction of the applicable Gaming
Authorities; or
(i) Executive's breach of any other provision of this
Agreement, provided that termination of Executive's employment pursuant to
this subsection (i) shall not constitute valid termination for good cause
unless Executive shall have first received written notice from the Board
stating with specificity the nature of such breach and affording Executive at
least fifteen (15) businessdays to correct the breach alleged.
7.3. RESIGNATION OF EXECUTIVE. The Company shall have the right
to terminate this Agreement and Executive's employment hereunder due to the
voluntary resignation of Executive, provided that Executive shall deliver no
less than sixty (60) days prior written notice of such resignation to the
Board, which notice may be waived by the Company in its sole discretion.
7.4. SEVERANCE COMPENSATION. Notwithstanding anything contained
in this Agreement, upon a termination of this Agreement and Executive's
employment hereunder due to the occurrence of any of the events referred to
in Section 7.1, 7.2 or 7.3 of this Agreement, Executive (or Executive's heirs
or representatives) shall be
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entitled to receive only such portion (if any) of the Base Salary as may
theretofore have accrued but be unpaid on the date on which the termination
shall take effect.
7.5. TERMINATION FOR NO CAUSE. In addition to the right to
terminate this Agreement pursuant to Sections 7.1, 7.2 and 7.3 of this
Agreement, the Company shall have the right to terminate this Agreement and
Executive's employment hereunder for any other reason or for no reason. In
the event that the Company terminates this Agreement and Executive's
employment hereunder pursuant to this Section 7.5, the Company shall give ten
(10) days prior written notice to Executive and pay a lump sum termination
fee to Executive in an amount equal to the greater of (i) Sixty-two Thousand
Five Hundred Dollars ($62,500) or (ii) six months of the Executive's base
salary rate immediately prior to such termination which would otherwise be
due Executive pursuant to this Agreement but for such termination and shall
also be provided medical, hospitalization, dental, vision, pharmacy and term
group life insurances, at no cost to Executive for a term of 6 months after
any termination. In addition, Executive shall be entitled to benefits noted
in this Section 7.5 in the event of a Change in Control of the Company if
within thirty (30) days after the Change in Control the Executive tenders his
resignation in conformity with Article 7.3 of the Agreement. . A Change in
Control of the Company shall mean a change in control of a nature that would
be required to be reported in response to Item 403(c) of Regulation S-K;
provided that, without limitation, such a change in control shall not be
deemed to have occurred if Xxxxx Xxxxxx is the beneficial owner as defined in
Rule 13d-3 under the Exchange Act, directly or indirectly, of securities of
the Company representing 51% or more of the combined voting power of the
Company's then outstanding securities.
7.6. TERMINATION OBLIGATIONS OF EXECUTIVE. In the event that this
Agreement and Executive's employment hereunder is terminated, Executive, or
his legal representative in case of termination by death or Executive's
physical or mental incapacity to serve, shall:
(a) by the close of the effective date of termination,
resign from all corporate positions held in the Company and any of its
subsidiary and affiliated companies;
(b) promptly return to a representative designated by the
Company all property, including but not limited to, keys, identification
cards and credit cards of the Company or any of its subsidiaries or
affiliated companies; and
(c) incur no further expenses or obligations on behalf of
the Company, or any of its subsidiaries and affiliated companies.
8. ARBITRATION. Any claim or controversy arising out of or relating
to this Agreement shall be settled by arbitration in Las Vegas. Nevada, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrators may be
entered in any court having jurisdiction. There shall be three arbitrators,
one to be chosen directly by each party at will, and the third arbitrator to
be selected by the two arbitrators so chosen. Each party shall pay the fees
of the arbitrator it selects and of its own attorneys, the expenses of its
witnesses and all other expenses connected with presenting its case. Other
costs of the arbitration, including the cost of any record or transcripts of
the arbitration, administrative fees, the fee of the third arbitrator, and
all other fees and costs, shall be borne equally by the parties hereto unless
it is determined that one or both parties were not acting in good faith in
which case the party determined to not have been acting in good faith shall
bear all fees and expenses described above which would otherwise have been
paid by the opposing party.
9. GENERAL RELATIONSHIP. Executive shall be considered an employee
of the Company within the meaning of all federal, state and local laws and
regulations including, but not limited to, laws and regulations governing
unemployment insurance, workers' compensation, industrial accident, labor and
taxes.
10. GENERAL PROVISIONS.
10.1. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns and
Executive, his assignees, and his estate. Neither Executive, his designees,
nor his estate shall commute, pledge, encumber, sell or otherwise dispose of
the rights to receive the
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payments provided in this Agreement, which payments and the rights thereto
are expressly declared to be nontransferable and nonassignable (except by
death or otherwise by operation of law).
10.2. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Nevada from time to time in effect.
10.3. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
10.4. NO WAIVER. Except as otherwise expressly set forth herein,
no failure on the part of either party hereto to exercise and no delay in
exercising any right, power or remedy hereunder shall operate as a waiver
hereof nor shall any single or partial exercise of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
10.5. HEADINGS. The headings of the Articles and Sections of
this Agreement have been inserted for convenience of reference only and shall
in no way restrict any of the terms or provisions hereof.
10.6. NOTICES. Any notice under this Agreement shall be given in
writing and delivered in person or mailed by certified or registered mail,
addressed to the respective party at the address as set out below, or at such
other address as either party may elect to provide in advance in writing, to
the other party:
EXECUTIVE:
Xxx Xxxxx
0000 Xxx Xxxxx Xxx.
Xxx Xxxxx, Xxxxxx 00000
COMPANY:
Hard Rock Hotel, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
WITH A COPY TO:
Xxxxxx & Silver
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxx
10.7. SEVERABILITY. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, or unenforceable
by reason of any rule of law or public policy, all other provisions of this
Agreement shall nevertheless remain in effect. No provision of this Agreement
shall be deemed dependent on any other provision unless so expressed herein.
10.8. COMPLIANCE WITH LAWS; GAMING AUTHORITIES APPROVAL. Nothing
contained in this Agreement shall be construed to require the commencement of
any act contrary to law, and when there is any conflict between any provision
of this Agreement and any statute, law, ordinance, or regulation, contrary to
which the parties have no legal right to contract, then the latter shall
prevail; but in such an event, the provisions of this Agreement so affected
shall be curtailed and limited only to the extent necessary to bring it
within the legal requirements. Notwithstanding anything contained in this
Agreement to the contrary, this Agreement and the terms
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and conditions contained herein shall be contingent upon receipt of all
requisite approvals of the applicable Gaming Authorities.
10.9. NO WAIVER. The several rights and remedies provided for in
this Agreement shall be construed as being cumulative, and no one of them
shall be deemed to be exclusive of the others or of any right or remedy
allowed by law. No waiver by the Company or Executive any failure of
Executive or the Company, respectively, to keep or perform any provision of
this Agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or other provision.
10.10. MERGER. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with
respect to the employment of Executive by the Company.
10.11. NO REPRESENTATIONS. Each party to this Agreement
acknowledges that no representations, inducements, promises or other
agreements, oral or otherwise, have been made by any party, anyone acting on
behalf of any party, which are not embodied herein and that no other
agreement, statement or promise not contained in this Agreement shall be
valid or binding. Any addendum to or modification of this Agreement shall be
effective only if it is in writing and signed by the parties to be charged.
10.12. DRAFTING AMBIGUITIES. Each party to this Agreement has
been afforded an opportunity to have this Agreement reviewed by his or its
respective counsel. The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or of any amendments or
exhibits to this Agreement.
10.13. SURVIVAL. The terms and conditions of Article 6 and
Section 10.6 of this Agreement shall survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date hereinabove set forth.
COMPANY: EXECUTIVE:
Hard Rock Hotel, Inc., a Nevada corporation
By: /s/ Xxxxx X. Xxxxxx /s/ Xxx Xxxxx
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Xxxxx X. Xxxxxx, President Xxx Xxxxx
