GENERAL RELEASE AND SEVERANCE AGREEMENT
Exhibit
10.32
THIS GENERAL RELEASE AND SEVERANCE
AGREEMENT (“Agreement”) by and between Xxx Xxxxxxxxx (hereinafter referred to as
“Xxxxxxxxx” or “Employee”) and GameTech International, Inc., a Delaware
corporation (hereinafter referred to as “GameTech” or “the Company” or
“Employer”), is made and entered into this 26th day of February,
2010. The Company and Xxxxxxxxx shall hereinafter be referred to
collectively as “the Parties.”
WHEREAS,
Xxxxxxxxx has decided to resign from all of his positions with GameTech and its
subsidiaries, and the Parties desire to finally and forever settle any and all
claims which they may now have or which may arise in the future, against one
another, which arise out of the past dealings between them, including, but not
limited to, any claims either Party may have arising out of Xxxxxxxxx’x
employment with GameTech and its subsidiaries and the Severance
thereof.
NOW THEREFORE, for and in consideration
of the acts, payments, covenants and mutual promises herein described and agreed
to be performed, the Parties agree as follows:
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1.
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Resignation. Employee
hereby resigns as the President and Chief Executive Officer of GameTech,
effective February 23, 2010, and he resigns as a member of GameTech’s
Board of Directors and any and all other positions that Employee holds
with GameTech and its subsidiaries effective February 23, 2010 (the
“Severance Date”). From and after the Severance Date, Employee
shall not hold himself out as an employee, officer, or director of the
Company or any of its subsidiaries with respect to any
matter.
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2.
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Company
Obligations: In
consideration for Employee’s execution and compliance with this Agreement,
and provided that Employee has not revoked this Agreement as set forth in
Section 9 herein, the Company agrees as
follows:
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A.
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Salary, PTO, Other:
Within seven days from the Severance Date, Employer agrees
to:
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i.
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Pay
Employee all salary earned through the Severance
Date;
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ii.
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Pay
Employee $26,884.31 for his accrued but unused paid time off. This is the
cash equivalent of the 176.96 hours he has accrued but not used, at
Employee's current annual base
salary;
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iii.
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Proper
tax withholdings in accordance with Employee's Form W-4 form shall be
deducted from the above amounts, thus reducing the above-referenced gross
amounts to net figures; and,
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iv.
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Pay
Employee for any outstanding reasonable, ordinary and customary business
expenses, as may be approved by GameTech. Employee agrees to immediately
provide to GameTech any such expenses not previously submitted to GameTech
for review and approval.
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X.
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Xxxxxxxxx. GameTech
shall pay Employee a gross amount equal to Employee's annual base salary
at the time of termination. Proper tax withholdings shall be
deducted, thus reducing the above referenced gross amount to a net figure.
Severance pay will be payable in installment payments, less all usual and
customary non-elective payroll deductions on regular pay
dates. Employer shall not render such payments until seven (7)
days after Employee has executed this Agreement; to allow for this
Agreement to become effective and binding on both parties as provided in
Section 10. However, after the expiration of the 7-day period, Employer
shall make up any payments that would have been paid otherwise during the
period.
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C.
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Health and Welfare
Benefits. Employee and his dependent’s health and
welfare benefits will remain in effect until February 28, 2010. If
Employee chooses to elect COBRA coverage, Employer will pay the COBRA
premiums for Employee and his dependent’s health and welfare benefits from
March 1, 2010 through August 31,
2011.
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2.
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Stock Options. GameTech
and Employee acknowledge and agree that all of Employee’s Incentive Stock
Options that GameTech has issued to him as an employee and as a director
have vested as of the Severance Date. Consistent with the stock
option agreements between GameTech and Employee, Employee must exercise
these Incentive Stock Options within 60 days after the Severance
Date..
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3.
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Stock Grants. GameTech
and Employee acknowledge and agree that none of the restricted stock
grants that GameTech has issued to him as an employee and as a director
have vested as of the Severance Date. The vesting period for
those restricted stock grants representing 27,500 shares of common stock
shall be accelerated so that they vest immediately as of the Severance
Date.
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4.
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Return of Equipment. On
or before the Severance Date, Employee will return all Employer’s keys,
credit cards, files, records, documents, plans, drawings, specifications,
equipment, pictures, videotapes, and similar items concerning the business
of Employer, its parent or subsidiary companies, or any related entity,
whether prepared by Employee or otherwise coming into Employee’s
possessions or control. Within seven (7) days of Employee
executing this Agreement, the Company shall return the personal computer
and mobile phone previously provided to Employee along with all personal
items currently in the Company’s
possession.
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5.
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Release of Claims. In
exchange for the mutual promises contained herein and payment and receipt
of the sums referenced in Section 2, Employee, on his own behalf, and for
Employee's heirs, executors, administrators, successors, and assigns, does
hereby fully and forever release and discharge Employer, its subsidiary
corporations and related entities, and their shareholders, employees and
former employees, agents, directors, officers, attorneys, predecessors,
successors, assigns, heirs, executors, administrators, and all other
persons, firms, corporations, associations, partnerships, or entities
having any legal relationship to any of them, and Employer, on its own
behalf, and, to the full extent of its legal authority to do
so, for its subsidiary corporations and related entities, and
their agents, directors, officers, attorneys, predecessors, successors,
assigns, heirs, executors, administrators, and all other persons, firms,
corporations, associations, partnerships, or entities having any legal
relationship to any of them does hereby fully and forever release and
discharge Employee and Employee's heirs, executors, administrators,
successors, and assigns, of and from any and all claims, demands, causes
of action, charges and grievances, of whatever kind or nature, whether
known or unknown, suspected or unsuspected, which either now owns or holds
or has at any time before the date of his termination owned or held
against the other, including, but not limited to, any and all claims,
charges, demands and causes of actions: (1) which are alleged in, set
forth in, arise out of, of are in any way connected with any transactions,
occurrences, act of omissions or claims; (2) which arise out of or are in
any way connected with Employee's employment with Employer or the
termination of Employee's employment with Employer; (3) which are related
to or concern (i) violations of any local, state or federal law based on
race, sex, age, disability, pregnancy or any other category protected by
law, including, but not limited to, the federal Age Discrimination in
Employment Act and the Older Worker's Benefit Protection Act; (ii)
wrongful termination, breach of express and implied-in-fact contract,
breach of the covenant of good faith and fair dealing, intentional and
negligent infliction of emotional distress, defamation, invasion of
privacy, breach of employment contract, fraud or negligent
misrepresentation, intentional interference with contractual relations,
and prospective economic advantage, and other torts; (4) any claim for
wages, benefits, salary, commissions or bonuses; or (5) which arise out of
or are in any way connected with any loss, damage or injury whatsoever
resulting from any act committed or omission made on or prior to the
Employee's last day of work.
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The terms
of this Agreement are made for the benefit of each person or entity named above.
It is the intention of the parties in executing this Agreement that it shall be
effective as a bar against each and every claim, demand, cause of action, charge
or grievance described above (whether known or unknown, suspected or
unsuspected, alleged or unalleged, actual or potential). Employee has had the
opportunity to speak with counsel of his choice regarding the effect of this
waiver.
This
Agreement, and its performance, does not constitute and shall not be construed
as an admission by either Employee or Employer, or any of the entities or
individuals referred to above, of the truth of any contested matter or of any
liability, any wrongful act, or any omission.
Except as
stated in this Agreement, Employee confirms that there are no other sums due or
owing him for wages, commissions, bonuses, accrued personal time off (PTO),
severance, or otherwise.
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6.
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Litigation. Employee
will not, unless required by law, engage in or assist in any litigation
against Employer, or any of the persons or entities named in Section 5,
relating to anything occurring on or before the Severance
Date.
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7.
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Non-compete. Employee
agrees that he shall not, either directly or indirectly, work for or
assist a Competitor, meaning any company, person or entity that competes
directly with the Company in any way, including as an employee, officer,
director, owner, or greater than 10% shareholder, for a period of twelve
months after the Severance Date. For purposes of this
Agreement, the term Competitor shall mean an entity licensed in the state
of Texas as a supplier of electronic bingo equipment or any entity that
currently markets, supplies or sells Video Lottery Terminals in the states
of Louisiana or Montana.
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8.
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Reinstatement. Employee
will not seek reinstatement or re-employment by
Employer.
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9.
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Right to
Review. Employee, by signing this Agreement,
acknowledges that he has had a full and fair opportunity to review,
consider and negotiate the terms of this Agreement as directed by the Age
Discrimination in Employment Act (“ADEA”), as many as 45 days if he so
chooses; that he has been advised to seek and has had the opportunity to
seek the advice of an attorney in connection with his decision whether to
accept the benefits that have been offered to him under this Agreement;
that he has reviewed this Agreement with full and free understanding of
its terms and without duress, coercion or undue influence; and, that he
has the authority and capacity to execute the Agreement on his own
behalf. Employee will have an additional seven (7) days after
signing this Agreement to reconsider Employee’s acceptance of this
severance offer. Employee may revoke his acceptance at any time
during that 7 day period by delivering a written revocation to Employer’s
General Counsel. Thereafter, the terms and conditions of this
agreement will be in force. Employee has read the foregoing and
agrees to be bound by its terms. Employee acknowledges that
Employee has had the opportunity to speak with counsel of Employee’s
choice. Employee acknowledges that the benefits provided herein
constitute greater consideration than Employee would otherwise have
received as wages or as any other compensation to which Employee is
otherwise entitled. No promise, inducement, or agreement not
expressed in this Agreement has been made to
Employee.
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10.
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Confidentiality;
Nondisclosure. Employee acknowledges that, by virtue of
Employee’s employment at the Company, Employee has been exposed to
confidential and proprietary information (“Confidential
Information”). Employee will not at
any time after termination of employment, in any fashion, form, or
manner, either directly or indirectly, divulge, disclose, or communicate
to any person, firm, or corporation in any manner whatsoever any
information of any kind, nature, or description concerning any
Confidential Information relating to the business of Employer, including,
without limitation, the names of any of its customers, customer lists, the
prices it obtains or has obtained, or at which it sells or has sold its
products, the names of its suppliers, methods of obtaining new business,
or any other Confidential Information concerning the business of Employer,
its manner of operation or its plans, processes, or other data of any
kind, nature, or description. The parties hereby stipulate
that, as between them, the foregoing matters are important, material, and
confidential, and gravely affect the effective and successful conduct of
the business of Employer, and its good will, and that any breach of the
terms of this section is a material breach of this
Agreement. Additionally, Employee acknowledges and agrees that
any confidentiality or invention of assignment agreements, if any, that he
signed during the course of his employment at the Company, shall survive
this Agreement, and that he will continue to be bound by such
agreements.
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Confidential
Information does not include, however, information which (a) is or becomes
generally available to the public other than as a result of a disclosure
by Employee, (b) was available to Employee on a non-confidential basis
prior to its disclosure to Employee, (c) becomes available to you on a
non-confidential basis from a party other than Employer or
any Employer Representative who is not otherwise bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to Employer, or (d) is requested or required by any
government agency, court, or licensing body by subpoena or
otherwise.
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11.
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Non-Solicitation. Employee
agrees that, for a period of twelve (12) months from the Severance Date,
Employee will not directly or indirectly, for or on behalf of any
individual, partnership, corporation, or other legal entity, as principal,
agent, or otherwise, solicit or induce any person employed by Employer or
any of its subsidiaries or affiliates to leave such employment, whether or
not such employment is pursuant to a written contract and whether or not
such employment is at-will, or hire any person who has been employed by
the Company or any of its subsidiaries or
affiliates.
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12.
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Continued Cooperation Regarding
Litigation and Regulatory Matters. Employee agrees to
continue to reasonably cooperate with the Company and its counsel in the
Company’s handling and defense of any current and future litigation,
arbitration proceedings, and regulatory matters. Such
reasonable cooperation shall include but not be limited to the
following: reviewing documents; conferring with counsel;
meeting with counsel to prepare for interviews, depositions and trial;
attending interviews, depositions, hearings and trial; and providing
truthful testimony at interviews, depositions, hearings and
trials. The Company shall reimburse Employee for reasonable
travel, lodging and other costs that he incurs pursuant to this
provision.
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13.
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Mutual
Non-Disparagement. The parties agree that they,
including anyone acting on their behalf, will not disparage each other,
their employees, officers, directors or agents, or act in any manner which
may damage the business of each other or which may adversely affect the
goodwill, reputation, or business relationships of each other, including
but not limited to posting messages on the internet chat rooms or message
boards that in any way disparage, embarrass, or harm each other or any of
their employees, officers, directors, or agents. This
non-disparagement provision shall not apply to any truthful statements, or
any statements that are reasonably believed by the maker to be true, that
are made (a) in response to a subpoena or other legal process, (b) to a
governmental or regulatory entity, or (c) in any legal, arbitral, or
mediation proceeding
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14.
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Severability. If
any term or provision of this Agreement is held to be invalid or
unenforceable, the remaining terms or provisions of this Agreement shall
continue to be valid and will be performed, construed and enforced to the
fullest extent permitted by law. The invalid or unenforceable
term or provision shall be deemed amended and limited in accordance with
the intent of the parties, as determined from the face of the Agreement,
to the extent necessary to permit the maximum enforceability or validation
of the term or provision.
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15.
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Entire Agreement. This
Agreement constitutes and contains the entire agreement and understanding
between the parties and supersedes and replaces all prior negotiations and
agreements proposed or otherwise, whether written or oral, concerning the
subject matter of this Agreement.
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16.
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Governing Law. This
Agreement shall be governed in all respects by the laws of the State of
Nevada, without regard to conflict of law principles. Any
dispute or controversy arising out of this Agreement shall be brought in
any court of competent jurisdiction located in the County of Washoe in the
State of Nevada, and Employee hereby consents to the jurisdiction of
Nevada courts over him.
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Employee’s
signature below acknowledges Employee’s review, understanding and full, knowing
and voluntary acceptance of the terms and conditions set forth in this
Agreement.
IN
WITNESS HEREOF, the parties have executed this Agreement on the dates written
below
Dated:
February 26,
2010 __/s/ Xxx
Xxxxxxxxx Xxx Xxxxxxxxx
Dated:
February 26,
2010 By:
_/s/ Xxxxxx
Xxxxxx Xxxxxx Xxxxxx Chief Financial
Officer
