Exhibit 99.3
POST EMPLOYMENT AGREEMENT
THIS POST EMPLOYMENT AGREEMENT ("AGREEMENT"), is made and entered into as
of August 16, 2002, by and between MIKOHN GAMING CORPORATION, a Nevada
corporation ("MIKOHN"), and XXXXX X. XXXXXXXX ("XXXXXXXX").
W I T N E S S E T H:
WHEREAS, MIKOHN and XXXXXXXX deem it to be in their respective best
interests to enter into an agreement providing for MIKOHN's termination of
XXXXXXXX'x employment pursuant to the terms herein stated.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein, it is hereby agreed as follows:
1. Settlement Payment; Note; Delivery of Shares. MIKOHN shall pay to
XXXXXXXX a settlement payment (the "Settlement Payment") equal to $2,817,212.
The Settlement Payment shall be payable as follows: [a] the sum of $1,087,397
shall be paid upon the execution of this Agreement by both parties; [b] the sum
of $592,421 shall be paid on April 1, 2003; and [b] the balance shall be paid in
twenty-four (24) monthly payments of $47,391.42 commencing on September 15,
2002. MIKOHN shall xxxx "Paid in Full" that certain promissory note dated
October 30, 1997 in the principal amount of $122,500 from XXXXXXXX secured by
20,000 shares of MIKOHN common stock and shall deliver said note and shares to
XXXXXXXX. In the event any payment to XXXXXXXX is more than five (5) business
days late, MIKOHN agrees to pay XXXXXXXX late charges of two percent (2%) of the
amount due.
2. Stock Options. The 350,000 stock options issued to XXXXXXXX during the
term of his employment by MIKOHN shall be deemed fully vested and may be
exercised at any time prior to the expiration dates specified at the time the
options were issued.
3. Right to Purchase Restricted Stock. On or before August 30, 2002,
XXXXXXXX shall have the right to purchase from MIKOHN up to 100,000 restricted
shares of common stock at a price of $1.571485 per share.
4. Medical Benefits. MIKOHN agrees that XXXXXXXX and his family will be
covered under MIKOHN's executive medical plan through December 31, 2006.
5. Miscellaneous. XXXXXXXX shall continue to be the designated
beneficiary of a MIKOHN corporate membership in Spanish Trails Country Club so
long xx XXXXXXXX maintains a residence in Las Vegas, Nevada. XXXXXXXX shall be
responsible for all dues, assessments and other costs relating to said
membership. MIKOHN shall transfer to XXXXXXXX legal title to that certain 1993
Chevrolet Suburban automobile currently in the possession of XXXXXXXX.
6. Chairman of the Board. The Board of Directors of MIKOHN shall adopt a
resolution confirming that XXXXXXXX shall retain the title of Chairman of the
Board of Directors throughout his current term as a director.
7. Covenant of Confidentiality. All documents, records, files, manuals,
forms, materials, supplies, computer programs, trade secrets, customer lists,
and other information which came into XXXXXXXX' possession from time to time
during XXXXXXXX' employment by MIKOHN, and/or any of MIKOHN's subsidiaries or
affiliates, shall be deemed to be confidential and proprietary to MIKOHN and
shall remain the sole and exclusive property of MIKOHN. XXXXXXXX acknowledges
that all such confidential and proprietary information is confidential and
proprietary and not readily available to MIKOHN's business
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competitors. XXXXXXXX agrees that XXXXXXXX will return to MIKOHN all such
confidential and proprietary items (including, but not limited to, company badge
and keys) in XXXXXXXX' control or possession, and all copies thereof, and that
XXXXXXXX will not remove any such items from the offices of MIKOHN. It is the
intention of the parties that the broadest possible protection be given to
MIKOHN's trade secrets and proprietary information and nothing in this Section
shall in any way be construed to narrow or limit the protection and remedies
afforded by the Uniform Trade Secrets Act. However, MIKOHN shall grant access to
XXXXXXXX to all documents, records, files and other information reasonably
necessary for XXXXXXXX to respond to or defend against (i) any governmental
investigation or audit or (ii) claim made by MIKOHN or third parties against
XXXXXXXX.
8. Covenant of Non-Disclosure. Without the prior written approval of
MIKOHN, XXXXXXXX shall keep confidential and not disclose or otherwise make use
of any of the confidential or proprietary information or trade secrets referred
to in this Agreement nor reveal the same to any third party whomsoever, except
as required by law.
9. Covenant of Non-Solicitation.
9.1 Employees. For a period of two (2) years from the date hereof,
XXXXXXXX, either on XXXXXXXX' own account or for any person, firm, company or
other entity, shall not solicit, interfere with or induce, or attempt to induce,
any employees of MIKOHN, or any of its subsidiaries or affiliates to leave their
employment or to breach their employment agreement, if any, with MIKOHN.
9.2 Customers. For a period of twelve (12) months from the date
hereof, XXXXXXXX, either on XXXXXXXX' own account or for any person, firm,
company or other entity, shall not solicit or induce, or attempt to induce, any
customer of MIKOHN to purchase any products or services which compete with any
products or services offered by MIKOHN.
10. Covenant of Cooperation. Upon request by MIKOHN, XXXXXXXX agrees to
cooperate with and assist MIKOHN in any matters with which XXXXXXXX was involved
during XXXXXXXX' employment by MIKOHN including, but not limited to, any
administrative or legal matters. MIKOHN shall reimburse XXXXXXXX for reasonable
out-of-pocket expenses incurred in providing such assistance.
11. Covenant Against Competition. For a period of twenty four (24) months
from the date hereof (the "Non-Compete Term"), XXXXXXXX shall not directly or
indirectly engage in or become a partner, officer, principal, employee,
consultant, investor, creditor or stockholder of any business, proprietorship,
association, firm, corporation or any other business entity which is engaged or
proposes to engage or hereafter engages in any business which competes with the
business of MIKOHN and/or any of MIKOHN's subsidiaries or affiliates in any
geographic area in which MIKOHN conducts business at the time of the termination
or expiration of the employment relationship. Notwithstanding the foregoing,
nothing contained herein shall prevent (i) XXXXXXXX from engaging in a business
or accepting employment with a business which does not sell to the gaming
industry or (ii) owning publicly traded debt or equity securities of any
company, whether or not said company competes with any business of Mikohn.
12. Non-Disparagement. Neither party shall make any remarks disparaging
the conduct or character of the other party or any of its affiliates, officers
or directors.
13. Mutual Release. Effective upon the execution of this Agreement, each
party hereby releases and forever discharges the other, together (where
applicable) with his or its past, present and future officers, directors,
shareholders, employees, agents, representatives, subsidiaries, parent companies
and affiliates, and their successors, heirs and assigns, from any and all
claims, demands, damages, actions, causes of action, suits, debts, liabilities
and obligations, liens, costs and expenses of any nature, character and
description, known or unknown, accrued or not yet accrued, whether anticipated
or unanticipated, arising from or in any way related to XXXXXXXX'x employment by
MIKOHN which the party now holds, or has any time heretofore owned or held, or
may at any time hereafter own or hold, by reason of any manner, cause or thing
whatsoever existing as of the date hereof or at any time prior hereto. The
foregoing notwithstanding, this release shall not apply to any claim XXXXXXXX
may now or hereafter have for indemnity from MIKOHN
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in respect to any claim asserted by third parties against XXXXXXXX arising from
acts or omissions of XXXXXXXX within the scope of his employment by MIKOHN.
14. General Provisions.
14.1 Arbitration. Any controversy involving the construction,
application, enforceability or breach of any of the terms, provisions, or
conditions of this Agreement, including without limitation claims for breach
of contract, violation of public policy, breach of implied covenant,
intentional infliction of emotional distress or any other alleged claims which
are not settled by mutual agreement of the parties, shall be submitted to
final and binding arbitration in accordance with the rules of the American
Arbitration Association at Las Vegas, Nevada. The cost of arbitration shall be
borne by the losing party. In consideration of each party's agreement to
submit to arbitration any and all disputes that arise under this Agreement,
each party agrees that the arbitration provisions of this Agreement shall
constitute his/its exclusive remedy and each party expressly waives the right
to pursue redress of any kind in any other forum. The parties further agree
that the arbitrator acting hereunder shall not be empowered to add to,
subtract from, delete or in any other way modify the terms of this Agreement.
Notwithstanding the foregoing, any party shall have the limited right to seek
equitable relief in the form of a temporary restraining order or preliminary
injunction in a court of competent jurisdiction to protect itself from actual
or threatened irreparable injury resulting from an alleged breach of this
Agreement pending a final decision in arbitration.
14.2 Authorization. MIKOHN and XXXXXXXX each represent and warrant to
the other that he/she/it has the authority, power and right to deliver, execute
and fully perform the terms of this Agreement.
14.3 Entire Agreement. XXXXXXXX understands and acknowledges that
this document constitutes the entire agreement between XXXXXXXX and MIKOHN with
regard to XXXXXXXX' employment by MIKOHN and XXXXXXXX' post-employment
activities concerning MIKOHN. This Agreement supersedes any and all other
written and oral agreements between the parties with respect to the subject
matter hereof. Any and all prior agreements, promises, negotiations, or
representations, either written or oral, relating to the subject matter of this
Agreement not expressly set forth in this Agreement are of no force and effect.
This Agreement may be altered, amended, or modified only in writing signed by
all of the parties hereto. Any oral representations or modifications concerning
this instrument shall be of no force and effect.
14.4 Severability. If any term, provision, covenant, or condition of
this Agreement is held by a court or other tribunal of competent jurisdiction to
be invalid, void, or unenforceable, the remainder of such provisions and all of
the remaining provisions hereof shall remain in full force and effect to the
fullest extent permitted by law and shall in no way be affected, impaired, or
invalidated as a result of such decision.
14.5 Governing Law. Except to the extent that federal law may preempt
Nevada law, this Agreement and the rights and obligations hereunder shall be
governed, construed and enforced in accordance with the laws of the State of
Nevada.
14.6 Taxes. All compensation payable hereunder is gross and shall be
subject to such withholding taxes and other taxes as may be provided by law.
XXXXXXXX shall be responsible for the payment of all taxes attributable to the
compensation provided by this Agreement except for those taxes required by law
to be paid or withheld by MIKOHN.
14.7 Assignment. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of MIKOHN. XXXXXXXX may not sell,
transfer, assign, or pledge any of XXXXXXXX' rights or interests pursuant to
this Agreement.
14.8 Waiver. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, or prevent that
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party thereafter from enforcing such provision or provisions and each and every
other provision of this Agreement.
14.9 Captions. Titles and headings to sections in this Agreement are
for the purpose of reference only and shall in no way limit, define, or
otherwise affect any provisions contained therein.
14.10 Breach - Right to Cure. A party shall be deemed in breach of
this Agreement only upon the failure to perform any obligation under this
Agreement after receipt of written notice of breach and failure to cure such
breach within ten (10) days thereafter; provided, however, such notice shall not
be required where a breach or threatened breach would cause irreparable harm to
the other party and such other party may immediately seek equitable relief in a
court of competent jurisdiction to enjoin such breach.
14.11 Acknowledgement. XXXXXXXX acknowledges that he has been given a
reasonable period of time to study this Agreement before signing it. XXXXXXXX
certifies that he has fully read, has received an explanation of, and completely
understands the terms, nature, and effect of this Agreement. XXXXXXXX further
acknowledges that he is executing this Agreement freely, knowingly, and
voluntarily and that his execution of this Agreement is not the result of any
fraud, duress, mistake, or undue influence whatsoever. In executing this
Agreement, XXXXXXXX does not rely on any inducements, promises, or
representations by MIKOHN other than the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have read, understood, and
voluntarily executed this Agreement as of the day and year first above written.
MIKOHN GAMING CORPORATION
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. XxXxxx, Xx
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XXXXX X. XXXXXXXX
Title: Secretary
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