CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered
into effective as of the 9th day of November, 1998, by and between American
Bingo & Gaming Corp., a Delaware corporation (the "Company"), and Xxxxxxx X.
Xxxx ("Consultant").
W I T N E S S E T H:
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WHEREAS, the Company is desirous of Consultant providing certain
services to the Company; and
WHEREAS, Consultant desires to provide such services to the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Services. The Company hereby retains Consultant to perform such services
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in connection with the Company's video poker operations or such other business
in South Carolina as the Company shall reasonably request from time to time, and
Consultant agrees to perform such services.
2. Compensation. In consideration for the services provided by Consultant
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hereunder, the Company shall pay Consultant a total fee of $60,000, which fee
shall be paid for as long as this Agreement remains in effect, on the following
schedule: (i) $30,000 on November 9, 1998, and (ii) $30,000 on November 9, 1999.
3. Termination of Employment Agreement. Consultant hereby resigns from any
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and all positions he holds with the Company and any subsidiary of the Company,
including, but not limited to, positions held as an officer, director, board
committee member and employee (except as provided below); provided, however,
Consultant is not resigning his position as a member of the Company's Board of
Directors or any committee thereof. In addition, the Company and Consultant
mutually agree to terminate the Employment Agreement dated September 24, 1997,
as amended July 27, 1998, by and between such parties effective as of the date
of this Agreement.
4. Term. This Agreement shall be effective as of November 9, 1998, and
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shall continue until November 8, 2000.
5. Cooperation with the Company. Consultant shall fully cooperate and work
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with the Company in connection with its activities under this Agreement.
6. Relationship of the Parties. The relationship between Consultant and the
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Company shall be that of an independent contractor. Nothing contained in this
Agreement shall be deemed to constitute a relationship of agency, joint venture,
partnership or any other relationship than that specified. Consultant
shall be responsible for all income, social security and other state, local and
federal taxes that arise as a result of the relationship contemplated hereby and
the payments made hereunder.
7. Termination. This Agreement may be terminated by the Company (a) upon
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the death of Consultant, (b) if the Company determines in good faith that a
Total Disability of Consultant has occurred ("Total Disability" shall mean any
illness, accident or other similar situation as a result of which Consultant is
unable to perform his duties hereunder for a period of 90 days), (c) for Cause
("Cause" shall mean Consultant's breach of fiduciary duty to the Company
involving personal profit, Consultant's intentional and material failure to
perform stated duties (after written notice thereof and a reasonable opportunity
to cure such failure), conviction of the Consultant by any court of competent
jurisdiction of a felony, or Consultant's material and continuing breach of any
provision of this Agreement (after written notice thereof and a reasonable
opportunity to cure such breach)), (d) if a gaming regulatory authority in any
jurisdiction in which the Company, or any of its subsidiaries, is operating or
is seeking to obtain licensing determines that the Consultant fails to satisfy
the applicable suitability requirements, or (e) if the Master Coin Machine
Agreement by and among the Company, Gold Strike, Inc., Xxxx & Dye Enterprises,
LLC, Consultant, and Xxxxx X. Xxx is terminated for any reason. This Agreement
may be terminated by Consultant if (a) the Company materially breaches its
obligation to make payment to Consultant pursuant to this Agreement or (b) a
gaming regulatory authority in any jurisdiction in which the Consultant or any
of his affiliates is operating or is seeking to obtain licensing determines that
the Consultant or any such affiliate fails to satisfy the applicable suitability
requirements as a result of the relationship created by this Agreement.
8. Limited Authority. Consultant acknowledges that he has no power or
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authority to enter into any contract or otherwise incur any liability on behalf
of the Company without its prior written approval. Consultant hereby agrees to
hold harmless and indemnify the Company against all liability, cost and expense,
including attorney's fees, which may be suffered or incurred by the Company as a
result of any breach of this Section 8.
9. Notice. Any notices, requests, demands and other communications
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hereunder shall be in writing and shall be delivered by hand with a signed
receipt, by registered or certified mail, return receipt requested, postage
prepaid, by a recognized overnight courier, or by facsimile transmission with
the original sent by mail on that same day, addressed as follows:
If to Consultant: Xxxxxxx X. Xxxx
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
If to the Company: American Bingo & Gaming Corp.
0000 Xxxxxxxxxx Xxxxxxx
Xxxx Xxxxxxxx, XX 00000
Attn: Chief Executive Officer
If delivered personally, the date on which a notice, request, instruction or
document is delivered shall be the date on which such delivery is made and, if
delivered by mail, courier or facsimile, the date on which such notice, request,
instruction or document is received shall be the date of delivery. Any party
hereto may change its address specified for notices herein by designating a new
address by notice in writing in accordance with this Section.
10. Modification; Waiver; Amendments. No provision of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing, signed by Consultant and the Company. No waiver by any
party hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of any similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. No
amendments or additions to this Agreement shall be binding unless in writing and
signed by all parties hereto, except as herein otherwise provided.
11. Applicable Law. This Agreement shall be governed in all respects
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whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of South Carolina, without regard to choice of law principles.
12. Assignment. This Agreement, and Consultant's rights and obligations
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hereunder, may not be assigned by Consultant. This Agreement, and the Company's
rights and obligations hereunder, may not be assigned by the Company except to a
successor in interest to the Company as a result of a merger, consolidation or
sale of all or substantially all of the assets of the Company, in which event
the obligations of the Company hereunder shall be binding on its successors or
assigns, whether by merger, consolidation, or acquisition of al1 or
substantially all of its assets.
13. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
14. Entire Agreement. This Agreement shall constitute the entire agreement
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between the parties with respect to the subject matter hereof, and any prior
understanding or representation of any kind preceding the date of this Agreement
shall not be binding upon either party except to the extent incorporated in this
Agreement.
15. Headings. The titles to the sections of this Agreement are solely for
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the convenience of the parties and shall not be used to explain, modify,
simplify, or aid in interpretation of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement to
be effective as of the day and year first hereinabove written.
AMERICAN BINGO & GAMING CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Xx., Vice President
CONSULTANT
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
