EXHIBIT 10.31
EMPLOYMENT AGREEMENT
Employment Agreement, dated as of November 21, 1996 (this
"Agreement"), by and between Riviera Holdings Corporation and its wholly-owned
subsidiary Riviera Operating Corporation (collectively the "Company") and
Xxxxxxx X. Xxxxxxxxx ("Executive").
This Agreement is intended to replace the Employment
Agreement, dated as of January 6, 1993, as amended, between the Company and
Executive (the "Old Agreement") effective as of January 1, 1997 and to provide
for certain amendments to the terms of the Old Agreement effective as of the
date of this Agreement.
The Company's Board of Directors and the Compensation
Committee of the Board of Directors have approved this Agreement, subject to
ratification by the Company's stockholders. In entering into this Agreement and
in particular in amending the "Option Plan" (hereinafter defined) and in
granting the "Additional Options" (hereinafter defined) to Executive, the
Company acknowledges that (i) Executive has surrendered extremely valuable
rights under the Old Agreement, including the right to receive 8-3/4% of the
Company's Operating Income (as defined in the Old Agreement) in excess of $20
million in each year of the Term and (ii) Executive is not prepared to continue
to act as the Company's chief executive officer unless he receives either the
benefits specified in the Old Agreement or in this Agreement.
If the Company's stockholders do not ratify this Agreement by
June 30, 1997, the Old Agreement will remain in full force and effect from
January 1, 1997, and this Agreement shall be null and void, except for the
"Special Retirement Credit" provisions of Section 6(a), which became effective
on November 21, 1996 and shall remain in full force and effect. If the Company's
stockholders do ratify this Agreement, the provisions hereof shall be effective
on January 1, 1997 except for those provisions which become effective on
November 21, 1996.
In consideration of the mutual agreements hereinafter set
forth, the parties hereto agree as follows:
1. Employment. During the "Term" (hereinafter defined)
the Company agrees to employ Executive as Chairman of the Board, President and
Chief Executive Officer of the Company during the Term (as defined in Section 2
below) upon the terms and conditions and for the compensation herein provided,
and Executive agrees to be so
employed and to render the services herein specified. Executive will also serve
as a member of the Company's Board of Directors during the Term.
2. Term of Employment. The initial term of employment of
Executive hereunder (the "Initial Term") will be for the two-year period
commencing on January 1, 1997 and ending on December 31, 1998. The Initial Term
will be automatically renewed for successive one year terms (each such renewal
term being an "Extended Term" and the Initial Term, together with any Extended
Terms being referred to herein as the "Term") unless (i) Company gives Executive
at least 90 days' written notice of termination ("Company Termination Notice"),
(ii) Executive gives Company at least 180 days written notice of termination
("Executive Termination Notice") or (iii) unless the Term is terminated earlier
by Company or Executive pursuant to the provisions of Section 11 of this
Agreement. If both a Company Termination Notice and an Executive Termination
Notice have been given the termination notice first given shall control.
3. Duties. During the Term Executive agrees to devote his full
and exclusive business time and attention to the business of the Company and its
subsidiaries (4 weeks vacation and sick leave in accordance with the Company's
policy and personal time consistent with his position excluded); to devote his
best efforts to the best of his skill, energy, experience and judgment to such
duties. Executive shall have all the powers and agrees to perform all of the
duties associated with his position as Chief Executive Officer of the Company,
subject to such policies and guidelines as may be established by the Company's
Board of Directors.
4. Salary. During the Term Executive shall receive a salary
at the rate of $600,000 per annum, payable bi-weekly in arrears ("Base Salary").
5. Bonus. Executive shall be entitled to participate in the
Company's Senior Management Compensation Plan or such other Executive bonus plan
as shall be established by the Company's Board of Directors (collectively the
"Plan"). When at least 80% of targeted "Net Income", as defined by the Plan, is
met, the Company has agreed that Executive shall be entitled to receive a bonus
("Bonus") under the Plan expressed as a percentage of Base Salary depending upon
the percentage of budgeted Net Income realized as specified on Schedule A.
6. Retirement Benefits.
(a) Credits to Account. A general ledger account (referred to
as the "Retirement Account"), has been established by the Company for the
purpose of reflecting retirement benefits for Executive (the "Retirement
Benefits"). As at January 1, 1996, the Company had credited the Retirement
Account with an aggregate of $1,710,000 and, as of
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December 31, 1996, will credit the Retirement Account by the amount by which
Executive's incentive compensation under the Old Agreement for the year 1996
exceeds $600,000 ("Special Retirement Credit"). On January 1 of each year during
the Term commencing January 1, 1997, the Company shall credit to the Retirement
Account an amount equal to the Base Salary, to be paid to Executive for the
current year of the Term which begins on such January 1, subject to the
provisions of Section 3(b). Executive shall be deemed to be 100% vested in all
Retirement Benefits in the Retirement Account. The Retirement Account shall be
credited with additional amounts ("Interest Payments") on April 1, 1997 and on
the first day of each succeeding calendar quarter equal to the product of (i)
the Company's average borrowing cost for the immediately preceding fiscal year,
as determined by the Company's chief financial officer (the "Interest Rate") and
(ii) the average outstanding balance credited to the Retirement Account for the
immediately preceding calendar quarter. Anything in the foregoing
notwithstanding, in the event Executive is terminated for "Cause" (as defined in
Section 11(b)(3)), Executive shall forfeit any and all rights to Retirement
Benefits, and the Company shall have no further obligation to Executive for
payment thereof.
(b) Rights to Retirement Account. The Company shall retain
beneficial ownership of all monies in the Retirement Account, which it may
earmark to pay the Executive's Retirement Benefits (however, such funds are to
be subject to the interests of the general creditors of the Company).
Notwithstanding the foregoing, upon the occurrence of the earlier of (i) the
affirmative vote of the then holders of a majority of the then outstanding
shares of the Company's common stock approving a "Change of Control" (as defined
in Section 11(d)), (ii) an Event of Default by the Company under Subsection
11(a)(1) or Subsection 11(a)(2) or (iii) the expiration or earlier termination
of the Term for any reason (other than "Cause" as defined in Section 11(b)(3)),
Executive may require, upon written notice delivered to the Company (within 30
days following such event) that, within 30 days following receipt of such
notice, the Company establish a "Rabbi Trust" in the form attached hereto as
Schedule B and transfer to such Rabbi Trust an amount of cash equal to the
amount credited to the Retirement Account, including any additional amount
credited to the Retirement Account under Subsection 11(c)(2)(ii), to be held and
administered in accordance with the terms of such Rabbi Trust. Upon the
crediting of any Base Salary Credits (as defined above) to the Retirement
Account under Subsection 6(a) of this Agreement following the establishment of
the Rabbi Trust, the Company shall transfer an additional amount of cash to the
Rabbi Trust equal to the amount of such Base Salary Credits, to be held and
administered in accordance with the terms of such Rabbi Trust.
(c) Benefits. The Retirement Benefits are to be paid as
deferred compensation as follows:
(1) Payment Upon Termination Including Disability. Upon
termination of Executive's employment, other than termination by the Company
for Cause,
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including, but not limited to termination because of "Disability" (as defined in
Subsection (5) below), the Company shall pay to Executive in 20 equal quarterly
installments the amount credited to the Retirement Account as of the Termination
Date and the Company shall also pay to Executive as an addition to each such
quarterly payment the additional amounts credited to the Retirement Account
during the preceding quarter.
(2) Payment Upon Death of Executive. Upon the death of
Executive at any time prior to the complete payment of amounts credited to the
Retirement Account, all subsequent payments shall be made to the Executive's
"Designated Beneficiary" (as defined below) in the same amount and on the same
schedule as specified in (1) above provided that the date of death of Executive
shall be treated as the Termination Date if no Termination Date has previously
occurred and further provided that Company shall make within eight months of
Executive's death a special payment equal to 60% of the value as of the date of
Executive's death of all remaining payments hereunder and such special payment
shall be treated a an acceleration of the final payments due.
(3) Designated Beneficiaries; Death of Executive or
Designated Beneficiary. A "Designated Beneficiary" to whom amounts are payable
under this Subsection 6(c) shall be the person designated in writing by the
Executive on a form substantially similar to the form attached hereto as
Schedule B (a "Beneficiary Designation Form") that is delivered to the
Company prior to the Executive's death. Any such Beneficiary Designation
Form may be revoked in writing by the Executive or may be changed, without
the consent of any prior Designated Beneficiary, by the Executive's
delivery to the Company of a Beneficiary Designation Form of later date
revoking the prior form or specifying a new Designated Beneficiary. If the
Executive fails to designate a Designated Beneficiary or if a Designated
Beneficiary does not survive the Executive, all installments payable
hereunder shall be paid to the Executive's personal representative or
pursuant to the terms of the Executive's will or the laws of descent and
distribution. If a Designated Beneficiary survives the Executive,
but dies prior to receiving all remaining installment payments to be paid
hereunder, any remaining installment payments shall be paid to the Designated
Beneficiary's personal representative or pursuant to the terms of such
Designated Beneficiary's will or the laws of descent and distribution.
(4) Disability Determination. Executive shall be deemed
to have become disabled ("Disability") for purposes of this Agreement, if
Company shall find on the basis of medical evidence satisfactory to it that
Executive is so totally mentally or physically disabled as to be unable to
engage in further employment by Company and that such disability shall be
determined to be such that it will cause, or actually does cause or has caused,
Executive to be absent from work for a period, or aggregate of periods,
in excess of three months in any one twelve month period.
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(5) Payment Commencement. The installment payments to be
made to the Executive or Executive's estate, as the case may be, under
Subsections (d)(1) or (d)(2), shall commence on the first day of the
calendar quarter following the Termination Date. The installment payments
to be made to the designated beneficiary upon the death of Executive shall
commence on a date to be selected by Company but within six (6) months from
Executive's date of death. Each installment payment shall be equal to the
amount credited to the Retirement Account immediately prior to the date of such
payment, divided by the remaining number of installment payments to be paid.
(6) No Trust. Except to the extent that a Rabbi Trust is
created pursuant to Section 6(b), nothing contained herein and no action taken
pursuant to the provisions of this Agreement shall create or be construed
to create a trust of any kind, or a fiduciary relationship between Company
and Executive, his Designated Beneficiary or any other person.
(7) No Assignment. The right of Executive or any other
person to the payment of deferred compensation or other benefits under this
Agreement shall not be assigned, transferred, pledged, or encumbered except
by will or by the laws of descent and distribution.
(8) Incapacity of Beneficiary. If the Company shall find
that any person to whom any payment is payable under this Agreement is unable to
care for his other affairs because of illness or accident or is a minor, any
payment due (unless a prior claim therefor shall have been made by a
duly appointed guardian, committee, or other legal representative) may be paid
to the spouse, a child, parent, or brother or sister, or to any person deemed
by Company to have incurred expense for such person otherwise entitled to
payment, in accordance with the applicable provisions of this Section 6.
Any such payment shall be a complete discharge of the Company's liabilities
under this Agreement.
7. Profit Sharing and 401(k) Plan. In addition to the Base
Salary, Bonus and Retirement Benefits, Executive shall be eligible for
participation in the Defined Contribution Plan adopted by Company by Adoption
Agreement, dated April 1, 1992, as modified pursuant to the provisions set forth
on the Term Sheet attached hereto as Schedule C and made a part hereof.
8. Additional Benefits and Compensation. During the
Term, Executive shall be entitled to:
(a) life insurance, group health insurance, including
major medical and hospitalization, comparable to such benefits offered to
other key executives of the Company;
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(b) reimbursement for all reasonable expenses incurred by
Executive in connection with the performance of his duties and in accordance
with any applicable policy of the Board (including 100% of reasonable travel and
entertainment expenses), subject to submission of appropriate documentation
therefor; and
(c) four weeks paid vacation during each year of the Term.
9. Options. On November 21, 1996, the Board of Directors
took the following actions on behalf of the Company (subject to stockholder
ratification):
(a) Amended the Company's Stock Option Plan ("Option Plan") to
increase the number of shares issuable thereunder from 480,000 to 1,000,000
million shares of common stock.
(b) Amended the Option Plan to permit the grant to Executive
of options to purchase an aggregate of 500,000 shares of common stock, of which
options to purchase 200,000 shares have already been granted ("Old Options") to
Executive.
(c) Granted Executive options ("New Options") to purchase
300,000 shares of common stock at per share Fair Market Value (as defined in the
Option Plan) on November 21, 1996, with 25% of the New Options being vested
immediately and 25% being vested on each of December 31, 1997, December 31, 1998
and December 31, 1999, provided that vesting of such options will be accelerated
if the Term is terminated for any reason other than "Cause" or voluntary
termination by Executive prior to 12/31/99 (as defined in Section 11(b)(3)),
including a "Change in Control" (as defined in Section 11(a)(2)).
(d) Upon exercise by Executive of the Old Options and/or the
New Options, the Company will lend (the "Loans") to Executive up to 40% of the
spread between the option exercise price and the closing market price of the
Company's common stock, multiplied by the number of shares being acquired upon
exercise of such Options with the principal of each such loan and interest
thereon at Interest Rate, being payable at the earlier of (i) on the second
anniversary of each such loan, or (ii) out of the proceeds from the sale of the
shares underlying each such exercised Option. The provisions of the New Options
and the Loans are set forth in the Option Agreement, a copy of which is annexed
hereto as Schedule D and to which reference is made for the complete provisions
of the New Options and the Loans.
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10. Indemnity.
(a) The Company agrees:
(1) To use its best efforts to purchase and maintain
during the Term of this Agreement a Directors and Officers Liability Insurance
Policy covering liabilities which may have been or will be incurred by
Executive in the performance of his services on behalf of Company provided,
however, that if available, such insurance is at a cost Company believes is
reasonable.
(2) Except as otherwise provided in Section 10(b), and
to the fullest extent allowed by law, to indemnify and hold Executive free
and harmless from any liability for injury or death to persons or damage
or destruction of property due to any cause whatsoever, either in or about
the Riviera Hotel and Casino (the "Hotel") or elsewhere, as a result of the
performance by Executive of his duties under this Agreement irrespective of
whether alleged to be caused, wholly or partially, by Executive;
(3) Except as otherwise provided in Section 10(b) below,
to reimburse Executive upon demand for any money or other property which
Executive is required to pay out for any reason whatsoever in performing
his duties hereunder, whether the payment is for charges or debts incurred
or assumed by Executive or any other party, or judgments, settlements, or
expenses in defense of any claim, civil or criminal action, proceeding, charge,
or prosecution made, instituted or maintained against Executive or the Company,
jointly or severally, because of the condition or use of the Hotel, or acts
or failures to act of Executive, or arising out of or based upon any law,
regulation, requirement, contract or award; and
(4) Except as provided in Section 10(b), to defend any
claim, action, suit or proceeding brought against Executive, arising out
of or connected with any of the foregoing, and to hold harmless and fully
indemnify Executive from any judgment, loss or settlement on account thereof,
regardless of the jurisdiction in which any such claim, actions, suits or
proceedings may be brought.
(b) Notwithstanding the foregoing, the Company shall not be
liable to indemnify and hold Executive harmless from any liability described
above which results from the gross negligence or willful misconduct of
Executive.
(c) If (i) the Company shall be obligated to indemnify
Executive, or (ii) a suit, action, investigation, claim or proceeding is begun,
made or instituted as a result of which Company may become obligated to
Executive hereunder, Executive shall give prompt written notice to the Company
of the occurrence is such event. The Company agrees to
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defend, contest or otherwise protect against any such suit, action,
investigation, claim or proceeding at the Company's own cost and expense.
Executive shall have the right but not the obligation to participate at his own
expense in the defense thereof by counsel of his own choice. In the event that
the Company fails timely to defend, contest or otherwise protect against any
such suit, action, investigation, claim or proceeding, Executive shall have the
right to defend, contest or otherwise protect against the same and may make any
compromise or settlement thereof and recover the entire cost thereof from the
Company including, without limitation, reasonable attorney's fees, disbursements
and all amounts paid or payable as a result of such suit, action, investigation,
claim, or proceeding or compromise or settlement thereof.
11. (a) Events of Default. The Term of employment of Executive
hereunder and any obligations of Executive hereunder (except with respect to any
obligations set forth in Section 12 hereof) may be terminated, at the option of
the non-defaulting party (which termination by the non-defaulting party shall be
deemed involuntary), upon the happening of any of the following events (which
shall be deemed to be "Events of Default"):
(1) If the other party shall breach, default or
fail to comply in any material respect with any covenant or agreement contained
in this Agreement followed by written notice from the non-defaulting party to
the other and failure of the defaulting party either to remedy or correct such
breach, default or noncompliance within thirty (30) days after receipt of such
notice; and
(2) A "Change in Control" (hereinafter defined),
without Executive's prior written consent, which shall be considered an Event of
Default by the Company.
(b) Other Termination. In addition to the Events of
Default set forth in Section 11(a) above, the Term of employment of Executive
hereunder shall be terminated upon the happening of the following events:
(1) The mutual consent of the parties hereof;
(2) The death or Disability of Executive;
(3) The Executive shall have been finally adjudicated
by a court to have committed a felony, fraud, or a crime involving dishonesty,
whether or not involving the Company ("Cause"), provided that pending such final
adjudication, the Company shall set aside in an escrow account, which shall be a
separate, non-commingled, interest bearing account, from the date of an
allegation of Cause, the following amounts which would not be payable in the
event of Executive's discharge for Cause: (A) the Base Salary; (B) the
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Retirement Benefits and (C) the Bonus; provided, however, that (I) if such final
adjudication or other disposition is favorable to Executive, all escrowed
amounts (including any interest accrued thereon) shall be paid to or for the
benefit of Executive promptly, (II) if such final adjudication is unfavorable to
Executive - i.e. Executive is found to have committed a felony, fraud or a crime
involving dishonesty - then all escrowed funds (including any interest accrued
thereon) shall be paid to the Company promptly and Executive shall have no
further interest therein; or
(c) Remedies. (1) The remedies of each of the parties upon the
occurrence of an Event of Default by the other party specified in Section
11(a)(1) shall be cumulative and not exclusive. However, no party shall be
obligated to the other for punitive or other forms of speculative or expectancy
damages. In addition to any and all such other remedies, the provisions of this
Agreement requiring the performance of an affirmative act by a party or
requiring a party to refrain from the performance of specific act, shall be
enforceable by injunctive proceeding or by a suit for specific performance.
(2) Upon the occurrence of an Event of Default
specified in Section 11(a)(2), Executive may, by giving not less than 90 days
notice to the Company, terminate all of Executive's obligations under this
Agreement (except for those specified in Section 12), effective upon the date
specified in such notice (the "Termination Date"), and shall be entitled to (i)
have credited to his Retirement Account an amount equal to one year of Base
Salary (in effect upon the Termination Date) credited to the Retirement Account
and (ii) 100% vesting on stock options held by Executive.
(d) "Change of Control" means any of the following: (i) all or
substantially all of the assets of the Company are sold as an entirety or as
part of a series of transactions to any person, (ii) the Company engages in any
merger, consolidation, sale of capital stock, sale of equity interests or any
other transactions with any other person, with the effect that after such
transactions the holders of common stock of the Company immediately prior to
such transactions own, directly or indirectly, in the aggregate less than a
majority in voting interest of the total voting power entitled to vote in the
election (A) of directors of the Company, if the Company is the surviving
entity, or (B) of directors, managers or trustees (1) of such other person, if
the Company is not the surviving entity, or (2) of such other person that
purchases all or substantially all of the Company's assets; (iii) any person
who, as of the date hereof, does not have 10% or more of the common stock of the
Company, acquires a majority in voting interest of the total voting power
entitled to vote for directors of the Company (otherwise than by reason of the
voting provisions of any preferred stock of the Company); (iv) any person
acquires more than 50% of the total voting power entitled to vote for directors
of the Company; or (v) any person acquires more than 50% of the total voting
power entitled to vote for directors, managers or trustees (X) of such person
other than the Company surviving any of the transactions referred to in clause
(i)
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above, or (Y) of such other person that purchases all or substantially all of
the Company's assets. A "person" for the purposes hereof, shall include an
individual corporation, partnership, trust or group acting in concert. A person
for the purposes hereof, shall be deemed to be a beneficial owner as that term
is used in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended.
12. Confidential Information; Non-Competition.
(a) During the Term and for a three year period commencing on
the termination of the Term of this Agreement for any reason, (i) 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, and (ii) Executive
shall not, without the prior written consent of the Company, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it in writing.
(b) Except as otherwise provided in this Section 12(b), during
the Term and for a three year period commencing on the termination of the Term
of this Agreement for any reason, the Executive will not, directly or
indirectly, (i) own, manage, operate, control or participate in the ownership,
management or control of, or be connected as an officer, employee, partner,
director, or consultant or otherwise with, or have any financial interest in
(except for (A) ownership as of the date hereof, (B) any ownership in the common
stock of the Company, or (C) any ownership of less than 5% of the outstanding
equity interest in any entity) any hotel/casino located in Xxxxx County, Nevada
or (ii) solicit or contact any employee of the Company or its affiliates 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. The provisions of Section 12(b) shall not apply in the event of (i) any
involuntary termination by the Company of Executive's employment under this
Agreement or (ii) the occurrence of a Change of Control.
(c) Executive acknowledges that the provisions of this Section
12 are reasonable and necessary for the protection of 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 or punitive damages, the
Company shall be entitled to seek and obtain injunctive relief from a court of
competent jurisdiction (without posting of a bond therefor)
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for the purposes of restraining Executive from any actual or threatened breach
of such provisions.
13. Miscellaneous
(a) This Agreement shall be governed, construed and
interpreted in accordance with the internal laws of the State of Nevada
applicable to agreements executed in that State.
(b) This Agreement supersedes all prior agreements and
understandings among the parties, and contains the full understanding of the
parties hereto with respect to the subject matter hereof. Any change,
modification or waiver of this Agreement must be in writing, signed by both
parties hereto or, in the case of a waiver, by the party waiving compliance.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original. The captions of each article and section are intended for
convenience only. All references herein to days, weeks and months shall mean by
calendar; unless specifically stated to the contrary. All references herein to
the singular shall include the plural, and all references to gender shall, as
appropriate, include other genders. All representations and warranties made
hereunder shall survive the execution and delivery and closing of this
Agreement. The Company consents to the execution of a memorandum of this
Agreement and the filing and recording of such memorandum with any governmental
body or agency having jurisdiction over the filing or recordation of interests
in real property. At the termination of this Agreement, Executive agrees to
execute in recordable form an instrument sufficient to evidence said
termination.
(c) It is the intention of the parties hereto that this
Agreement shall not inure to the benefit of any third parties not parties to
this Agreement, and it is specifically intended that no third party beneficiary
relationships, benefits or obligations shall arise or be deemed to exist as a
result of this said Agreement.
(d) This Agreement shall inure to the benefit of and be
binding upon each of the parties hereto, their heirs, assigns, successors and
personal representatives, however, as a personal service contract, it shall not
be assignable by Executive without the prior written consent of the Company.
(e) The failure or delay by either party in any one or more
instances to enforce one or more of the terms and conditions of this Agreement
or to exercise any right or privilege under this Agreement shall not thereafter
be construed as a waiver of any such term, condition, right or privilege and the
same and all other terms, conditions, rights or privileges under this Agreement
shall continue to remain in full force and effect as though no such failure or
delay had occurred.
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(f) Any and all disputes between the parties hereto, however
significant, arising out of, relating in any way to or in connection with this
Agreement (including the validity, scope, and enforceability of this arbitration
clause) will be solely settled by an arbitration conducted in accordance with
the rules of the American Arbitration Association or any similar successor body
before a panel of three arbitrators. Each party shall appoint one arbitrator. If
a party fails to nominate an arbitrator within 10 days from the date when the
claimant's request for arbitration has been communicated to the other party in
writing, the appointment shall be made within 10 days thereof by the American
Arbitration Association. The two arbitrators so appointed shall attempt to agree
upon the third arbitrator to act as chairman. If the two arbitrators fail to
nominate the chairman within 10 days from the date of appointment of the later
appointed arbitrator, the chairman shall be selected within 10 days thereof by
the American Arbitration Association. The arbitration shall be conducted with a
view to commencing proceedings within 30 days from the date when the claimant's
request for arbitration was communicated to the other party in writing and to
rendering the award or other judgment not more than 15 days thereafter. The
award or other judgment of the arbitrators shall be final, and the parties agree
to waive their right to any form of appeal, to the greatest extent allowed by
law, and to share equally the fees and expenses of the arbitrators. Judgment
upon any award of the arbitrators may be entered in any court having
jurisdiction or application may be made to such court for the judicial
acceptance of the award and for order of enforcement. Such arbitration shall be
held only in Las Vegas, Nevada. Pending resolution of the dispute, there shall
be no stoppage by either party under the terms hereof; rather, the parties
hereto shall perform diligently under this Agreement pending ultimate resolution
of the dispute. By agreeing to arbitration, neither party hereto is waiving any
benefit of any statute of limitations or other equitable defenses.
(g) No voluntary or involuntary successor in interest of the
Company shall acquire any rights or powers under this Agreement, except as
specifically set forth herein. Otherwise, the Company shall not assign all or
any part of this Agreement.
14. Notices. All notices, requests, demands, directions and
other communications provided for hereunder shall be in writing and delivered
personally or mailed by certified or registered mail, return receipt requested,
to the following addresses for each party during the Term or until such time as
written notice, as provided hereby, of a change of address to be used thereafter
is given to the other party, with copies to such legal counsel as each party,
from time to time, may designate:
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Company Executive
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RIVIERA HOLDINGS CORPORATION XX. XXXXXXX X. XXXXXXXXX
2901 Las Vegas Blvd. So. 0000 Xxx Xxxxx Xxxx. Xx.
Xxx Xxxxx, Xxxxxx 00000 Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxx, Chief PERSONAL & CONFIDENTIAL
Financial Officer
Notices delivered personally shall be deemed to have been given upon delivery;
notices delivered by certified or registered mail shall be deemed to have been
given seventy-two (72) hours after the date deposited in the mail, except as
otherwise provided herein.
15. Government Approvals. Notwithstanding any other terms and
provisions set forth in this Agreement, if is understood and agreed that the
engagement of Executive hereunder, the obligation of the parties hereto, and the
effect of the Agreement, shall be subject to the approval of each and all of the
terms, covenants and provisions of this Agreement by the Nevada Gaming
Authorities and other Governmental Authorities from whom approval, if any, is
required under the laws of the State of Nevada, the County of Xxxxx, or any and
all other governmental agencies having jurisdiction thereover. Each of the
parties hereby covenant and agree to exercise their best good faith efforts to
proceed to obtain any and all such necessary approvals.
16. Compensation Under Old Agreement. Notwithstanding the
provisions of Sections 4, 5 and 6 hereof, in no event shall the sum of Base
Salary, Bonus and Credits to Retirement Account (excluding the Interests
Payments) payable to or for the account of Executive in any year of the Term
under this Agreement exceed the sum of Base Salary, Bonus and Credits to
Retirement Account which would have been payable to or for the account of
Executive under the Old Agreement and Executive shall instruct the Company as to
the reductions of Base Salary, Bonus and Credits to
Retirement Account necessary to comply with the provisions of this Section 16.
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IN WITNESS WHEREOF, the parties herein have entered into this
Agreement the day and year first above mentioned.
COMPANY: EXECUTIVE:
RIVIERA HOLDINGS CORPORATION
By:______________________ ________________________
XXXXXXX X. XXXXXXXXX
Its:___________________
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