AGREEMENT
AGREEMENT (the "Agreement") made as of April 10, 1998 (the "Effective
Date"), by and between Xxxx X. Xxxxx ("Xxxxx") and American Bingo & Gaming
Corp., a Delaware corporation (the "Company"). Orton and the Company are
collectively referred to as the "Parties."
1. Orton is employed by the Company as Chief Financial Officer pursuant to
an Employment Agreement dated October 29, 1996 (the "Employment Agreement").
Orton will continue to perform his duties full-time under the Employment
Agreement until the Company completes its annual shareholder meeting or the
Close of business on June 5, 1998, whichever is sooner. Commencing Monday, June
8, 1998, Orton will perform his employment duties on an as-needed basis, not to
exceed twenty hours per week (including all travel time). To the extent Orton
works in excess of twenty hours on behalf of the Company during any calendar
week, such excess hours shall be credited to and offset Orton's maximum time
availability in subsequent periods; and any excess hours that have not been so
offset in any calendar month (i.e., those exceeding 80 hours in the aggregate)
shall be compensated at $125 per hour. Orton shall report all accumulated time
credits to the Company at the end of each calendar month. Notwithstanding
anything in the Employment Agreement to the contrary, Orton shall be free to
work for, consult with, assist and/or receive compensation from other sources,
so long as such affiliations do not materially interfere with the duties to be
rendered by Orton to the Company under this paragraph 1.
2. Orton's employment relationship with the Company, and (except as
provided herein) his Employment Agreement, shall terminate on December 31, 1998
(the "Termination Date"). Orton shall receive his full annualized compensation
of One Hundred Thousand Dollars ($100,000) through December 31, 1998 in
customary semi-monthly payments, subject to any customary and required tax
withholdings and deductions, and shall receive all benefits and bonuses
customarily provided by the Company and/or set forth in the Employment Agreement
to the extent such rights accrue during the period prior to the Termination Date
(even if distributed thereafter), including but not limited to those benefits
and bonuses referred to in paragraphs 4, and 6 through 8 of the Employment
Agreement.
3. To the extent the following may be lawfully accomplished, Orton may, at
his election, exercise the option to defer all or a portion of his income to the
1999 Calendar year. This election may be accomplished by the designation of an
escrow agent to receive and hold Orton's compensation from the Company. Orton
will notify the Company in writing if he chooses to exercise this election.
4. Subsequent to the Termination Date, Orton shall not hold himself out as
being affiliated with, an agent for, or possessing authority to bind the Company
in any manner.
5. Prior to and after the Termination Date, Orton shall be entitled to all
indemnity protections (statutory, contractual, and those arising under insurance
policies) that apply to other former officers of the Company, and the Company
shall not hereafter reduce the level of such protection available to Orton.
6. Orton currently holds, under the Company's Stock Plans, several tranches
of stock options, consisting in the aggregate of 75,000 shares at an exercise
price of $5.00 per share, and 50,000 shares (25,000 of which are already vested)
at an exercise price of $2.00 per share (collectively, including any stock
options hereafter issued to Orton, the "Options"). All of Orton's Options shall
be fully vested as of the Effective Date, notwithstanding anything to the
contrary in the Employment Agreement or any other agreement applicable to the
Options. To the extent Company consent is thereafter required for transfers of
securities, the Company shall not unreasonably delay or withhold consent to
Orton's requests, provided they are consistent with applicable law, to sell the
Company's securities; and the Company shall provide reasonable letters
confirming Orton's right to sell (including, after 1998, as a non-affiliate) in
accordance with Rule 144 restrictions or other applicable regulations.
7. To the extent any provision of this Agreement conflicts with the
Employment Agreement or any other agreement between the Parties, such agreements
are deemed automatically modified in accordance herewith. Except to the extent
automatically modified herein as necessary to avoid conflict with this
Agreement, all existing agreements regarding noncompetition, exclusivity, and
confidentiality existing between Orton and the Company shall continue in effect
in accordance with their terms.
8. Orton understands that all health insurance benefits paid by the Company
for Orton or his dependents will cease as of the Termination Date. However,
Orton may elect at his own expense, to continue the health insurance coverage
formerly provided by the Company to the extent authorized by Texas' employee
health insurance continuation laws, or if applicable, the Consolidated Omnibus
Budget Reconciliation Act of 1985 (COBRA). Orton may notify the Company in
writing of his election to continue the health insurance coverage on himself
and/or his dependents, as currently in effect, in which case he shall pay to the
Company (or the carrier, as the case may be) the premiums attributable thereto
in advance on the first day of each month. The Company will assist in the
arrangements for the continuation of his health insurance.
9. Orton shall have the option to purchase from the Company or its lessor,
if applicable (with all transferable warranties), his company car, a 1996
Chevrolet Tahoe (VIN number 00XXX00X0XX000000) for 75 percent of the lowest 1998
year-end blue book price, which option may be exercised during the period from
December 31, 1998 through and including January 31, 1999.
10. Upon the Termination Date, Orton shall promptly surrender to the
Company all materials (including, without limitation, keys, access cards, and
files) belonging to the Company, whether or not deemed confidential or
proprietary.
11. This Agreement may not be modified except in a written instrument
hereafter signed by the Parties to be bound by such modification. This Agreement
shall bind and inure to the benefit of the Parties, their successors, assigns,
heirs and legal representatives.
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12. The prevailing Party in any proceeding relating to this Agreement shall
be entitled to recover reasonable attorneys fees. Either Party may request
mediation of any dispute, in which event the Parties, through their attorneys,
shall promptly select a mediator and convene a mediation within thirty (30)
days, subject to the mediator's schedule.
13. The provisions of this Agreement are deemed severable; if a provision
herein is unenforceable the remainder of the Agreement shall remain enforceable
provided that the deletion of the invalid provision does not substantially
defeat the objects and benefits to be derived under this Agreement.
14. Each Party shall take such actions as may be reasonably necessary to
effectuate this Agreement.
15. This Agreement binds and inures to the benefit of the successors,
assigns, and legal representatives of the Parties, provided that the obligation
of Orton to furnish personal services may not be assigned.
16. THIS AGREEMENT SHALL BE DEEMED PERFORMABLE BY ALL PARTIES IN XXXXXX
COUNTY, TEXAS, AND THE CONSTRUCTION AND ENFORCEMENT OF THIS AGREEMENT SHALL BE
GOVERNED BY TEXAS LAW.
17. The undersigned representative of the Company represents that he has
been authorized by the Company's Board of Directors to sign this Agreement on
behalf of the Company.
Executed as of the Effective Date.
AMERICAN BINGO & GAMING, INC.
By: /s/ Xxxx Xxxxxx
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Its Authorized Representative
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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