EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement"), is made and entered into this 24th day
of October, 1997, by and between Hard Rock Hotel, Inc., a Nevada corporation
("Hard Rock"), and Xxxx Xxxxx ("Employee").
WITNESSETH:
WHEREAS, Hard Rock desires to secure the benefits of Employee's background,
knowledge, experience, ability, expertise and industry to promote and maintain
Hard Rock's stability, growth, viability and profitability; and
WHEREAS, Hard Rock desires to engage the services of Employee who is
desirous of being employed by Hard Rock under the terms and conditions as herein
set out; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, together with other good and valuable consideration
the receipt of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. DEFINITIONS
1.1. "Employee" shall at all times mean Xxxx Xxxxx.
1.2. "Hard Rock" shall at all times mean Hard Rock Hotel, Inc., a Nevada
corporation, and its Successor in Interest together with its subsidiaries.
1.3. "Successor in Interest" shall mean any entity which is the successor
or assign of Hard Rock, at law or at equity, and shall include without
limitation, any entity into which Hard Rock is merged or consolidated, and any
entity to which all or substantially all of the assets or businesses of Hard
Rock is transferred.
2. NATURE OF EMPLOYMENT AND DUTIES OF EMPLOYEE
2.1. Effective November 10, 1997 (the "Effective Date"), Employee shall be
employed by Hard Rock in the capacity of Vice President - Construction or such
other position as determined by the Chief Executive Officer of Hard Rock with
the understanding that Employee's title shall be befitting a senior executive
and shall be responsible for the overall supervision, direction and control of
Hard Rock's expansion and construction activities. He shall do and perform all
services, acts, or things necessary or advisable to assist in the management and
conduct of the business of Hard Rock, subject always to the policies as set
forth by the Board of Directors of Hard Rock (the "Board").
2.2. Employee has reviewed and concurs with his responsibilities and duties
as set forth in Section 2.1 above.
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2.3. Employee shall devote his entire productive time, ability and
attention to the business of Hard Rock during the term of this Agreement.
Employee shall not, directly or indirectly, render any service of a business,
commercial or professional nature, to any other person or organization, whether
for compensation or otherwise, without the prior written consent of the
President/CEO of Hard Rock except that Employee shall not be precluded from
involvement in charitable or civic activities or his personal financial
investments provided the same do not interfere with his time or attention to the
business of Hard Rock.
2.4. Employee agrees that to the best of his ability and experience he will
at all times conscientiously perform all of the duties and obligations expressly
required of him.
2.5. Employee shall have an appropriately furnished office in a location
designated by Hard Rock in Las Vegas, Nevada, where he will be based. Hard Rock
may require, and Employee expressly acknowledges such potential requirement,
Employee to travel frequently to varied unspecified locations throughout the
United States and the world as may be needed to carry out the tasks assigned to
him pursuant to this Agreement. Should any of this travel be for extended
periods of time, Hard Rock shall compensate Employee for the costs of temporary
relocation to and from these areas and will provide Employee and his family with
appropriate accommodations as well as a suitable vehicle including the
maintenance costs thereof.
3. TERM OF EMPLOYMENT
Hard Rock shall employ Employee, and Employee hereby agrees to be employed
by Hard Rock from and after the Effective Date for a period of three (3) years;
PROVIDED, HOWEVER, that this Agreement may be terminated earlier as hereinafter
provided.
4. TERMINATION OF EMPLOYMENT WITHOUT CAUSE
4.1. Employee may be terminated at any time by the Board on ninety (90)
days' prior written notice to Employee specifying grounds for termination and,
if they are not those as provided in Section 5.1 herein, then Employee shall
continue to be paid all compensation and shall receive all benefits to which he
is entitled to hereunder through the balance of the term hereof as provided for
in Article 3 above.
4.2. Employee may, at Employee's sole option and right, terminate this
Agreement at any time after the completion of the initial expansion phase of the
Hard Rock Hotel located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx, by giving Hard
Rock ninety (90) days' prior written notice and Hard Rock shall be under no
obligation to Employee except to pay him compensation for such services as may
have been performed up to the effective date of such termination. For the
purposes of this Section 4.2, "completion of the initial phase" shall mean the
date upon which a Certificate of Occupancy is issued by Xxxxx County, Nevada.
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4.3. If during the term hereof Employee shall die or become disabled, he
shall be entitled to death and/or disability benefits that may be due Employee
under any other benefit plans in effect from time to time.
5. TERMINATION OF EMPLOYMENT FOR CAUSE
5.1. Hard Rock may at any time, at its election, exercise by written notice
to Employee stating with specificity the reason for the termination,
terminate this Agreement and the employment term because of Employee's:
(a) gross negligence or willful malfeasance in the performance of his
duties under this Agreement;
(b) failure to obtain or retain any permits, licenses, or approvals
which may be required by any state or local authorities in order
to permit the Employee to continue his employment as contemplated
by this Agreement.
(c) conviction of a crime involving moral turpitude; or
(d) dishonesty with respect to Hard Rock including breach of duty to
Hard Rock involving Employee's personal gain or profit.
Upon the occurrence of any of the above, at Hard Rock's sole option,
Employee's employment shall immediately cease and terminate and Hard Rock shall
be under no obligation to Employee except to pay him for such services as may
have been performed up to the date of such termination.
6. COMPENSATION OF EMPLOYEE
6.1. Employee shall receive an annual salary of One Hundred Sixty Thousand
Dollars ($160,000), payable in at least monthly installments, less all
applicable federal, state and local taxes, Social Security and any other
government mandated deductions.
6.2. Employee shall be eligible to receive an annual bonus to be determined
by the Board payable within thirty (30) days after the end of Hard Rock's fiscal
year during the term of this Agreement; PROVIDED, HOWEVER, that Employee's bonus
for Hard Rock's 1997 fiscal year shall not be less than Fifty Thousand Dollars
($50,000) and shall be paid in the first quarter of 1998. Hard Rock shall afford
Employees an opportunity to earn annual bonuses in an amount comparable to the
amount that Employee could have received pursuant to the bonus program of
Harveys Casino Resorts ("Harveys") in effect as of the date of this Agreement.
6.3. Employee shall be entitled to participate in certain stock option
plans that Hard Rock provides to its comparable senior executives to the extent
such plans are established by Hard Rock which the parties hereto anticipate will
be similar to those
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established by Harveys but in no event shall Employee's ability to participate
in Hard Rock's stock option plans, when established, to be less than that level
of participation currently enjoyed by Employee pursuant to the Harveys stock
option plan as of the date of this Agreement.
6.4. Employee shall be entitled to participate in Hard Rock's group
insurance, hospitalization and health and benefit plans as well as all other
benefit plans that Hard Rock provides to its comparable senior executives to
the extent such plans are established by Hard Rock which the parties hereto
anticipate will be similar to those established by Harveys but in no event
shall Employee's ability to participate in such group insurance
hospitalization and health and benefit plans, when established, be less than
that level of participation currently enjoyed by Employee pursuant to the
Harveys group insurance, hospitalization and health and benefit plans as of
the date of this Agreement.
6.5. Employee shall be entitled to spend two (2) weeks per year attending
advanced engineering or construction courses at his sole cost and expense,
provided that such two (2) week absence does not interfere with his duties
pursuant to this Agreement. Such two (2) week absence shall not be deemed
vacation nor shall it cause a reduction in compensation.
6.6. During the term of this Agreement, Employee shall, when established by
Hard Rock, be allowed to participate in a 401(k) plan and Hard Rock shall match
fifty percent (50%) of Employee's contributions as provided in such a plan.
6.7. Employee shall be entitled to vacation and holiday pay that Hard Rock
provides to its comparable senior executives. In no event, however, shall the
vacation time afforded to Employee under such policy be less than two (2) weeks
per annum.
7. COVENANTS OF EMPLOYEE
During the term of this Agreement and thereafter, Employee shall hold in
a fiduciary capacity for the benefit of Hard Rock all secret or confidential
information, knowledge or data relating to Hard Rock 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 Employee or his
representatives in violation of this Agreement), including, without
limitation, customer/client lists, matters subject to litigation, and
technology or financial information of Hard Rock or its subsidiaries, without
the prior written consent of Hard Rock. In addition, during the term of this
Agreement and for a two (2) year period thereafter, Employee shall not,
directly or indirectly, solicit or contact any employee of Hard Rock or any
affiliate of Hard Rock, with a view to inducing or encouraging such employee
to leave the employ of Hard Rock or its affiliates, for the purpose of being
employed by Employee, an employer affiliated with Employee or any competitor
of Hard Rock or any affiliate thereof. Employee acknowledges that the
provisions of this Article 7 are reasonable and necessary for the protection
of Hard Rock and that Hard Rock will be irrevocably damaged if such
provisions are not specifically enforced. Accordingly, Employee agree that,
in addition to any other relief to which
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Hard Rock may be entitled in the form of actual or punitive damages, Hard Rock
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
Employee from any actual or threatened breach of such provisions.
8. MISCELLANEOUS
8.1. If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs, and necessary disbursements in addition to
any other relief to which he may be entitled.
8.2. This Agreement shall be construed and governed by the laws of the
State of Nevada, and any action between the parties shall be maintained only
within the applicable state or federal court located in Xxxxx County, Nevada.
8.3. This Agreement, and all of the terms and conditions hereof, shall bind
Hard Rock and its successors and assigns and shall bind Employee and his heirs,
executors and administrators. No transfer or assignment of this Agreement shall
release Hard Rock from any obligation to Employee hereunder.
8.4. Notices to or for the respective parties 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:
Employee: Xxxx Xxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to: Xxxx X. Xxxxxxxxx, Ltd.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx, Esq.
Hard Rock: Hard Rock Hotel, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
with a copy to: Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxxxxx
00xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
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8.5. If any provisions of this Agreement is held by the aforesaid court 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.
8.6. 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 statue, law, ordinance, or regulation,
contrary to which the parties hereto 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.
8.7. 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
Hard Rock or Employee of any failure by Employee or Hard Rock, respectively, to
keep or perform any provision of this Agreement shall be deemed to be a waiver
of any proceeding or succeeding breach of the same or other provision.
8.8. This Agreement supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the employment of the
Employee by Hard Rock, contains all of the covenants, conditions and agreements
between the parties with respect to such employment. Each party to this
Agreement acknowledges that no representations, inducements, promises or other
agreements, oral or otherwise, have been made by any party, or 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.
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Intending to be legally bound, the parties hereto have executed this
Agreement as of the date above first written.
EMPLOYEE: HARD ROCK:
/s/ Xxxx Xxxxx Hard Rock Hotel Inc., a Nevada corporation
----------------------------
Xxxx Xxxxx
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, President
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