SHARED SERVICES AGREEMENT
Exhibit 10.43
PRIVILEGED AND
CONFIDENTIAL
This Shared Services Agreement is made as of January 1, 2008 (the “Effective Date”) between Xxxxxx Gaming, Inc. (“HG”), a Nevada corporation and collectively, Xxxxx-Xxxxxxxx Industries, a Nevada corporation and Terrible Xxxxxx, Inc. (collectively, “TH”), a Nevada corporation. HG and TH are sometimes individually referred to as a “Part” and collectively as the “Parties.”
Preliminary Statements
WHEREAS, subject to the terms and conditions set forth herein, TH desires to reimburse HG for certain employees of HG which are listed on the attached Exhibit A (the “Employees”) and perform services for TH as requested from time to time by TH (the “Services”); and
WHEREAS, subject to the terms and conditions set forth herein, HG desires that such Employees perform such Services for TH and charge TH for the costs associated with such Services.
Agreement
NOW THEREFORE, in consideration of the terms and conditions set forth below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Specifications of Work.
1.1 General Services. The Parties agree that the general scope and results of the Services to be performed by the Employees shall be determined by TH and consist primarily of the day-to-day functions of TH.
1.2 Substitution of Individuals. In the event that an Employee resigns as an employee of HG or has been terminated by HG as an employee (“Termination Event”), HG shall provide notice of such Termination Event to TH. If an Employee is subject to a Termination Event: (i) HG shall use its reasonable efforts to replace or substitute another individual as an Employee but shall not have any liability to TH for its failure to do so; (ii) HG shall provide written notice to TH of such replacement or substitute Employee; and (iii) the Parties shall consent in writing to the amendment of the attached Exhibit A, including the salary, the benefit cost and the Allocation Percentage attributable to such replacement or substituted Employee, which shall not be unreasonably withheld. If an Employee is subject to a Termination Event and if HG has not replaced or substituted such Employee, all references to such Employee and costs allocations to such Employee shall be deemed automatically deleted from the attached Exhibit A.
2. Term. Subject to the terms and conditions set forth herein, this Agreement shall commence on the Effective Date and continue in full force and effect for one year (the “Term”),
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unless terminated as provided herein, and the Term shall, unless terminated by mutual written agreement by the Parties, be automatically extended for an additional one year period.
3. Fees.
3.1 Consideration.
(a) In consideration of furnishing the Services, TH shall pay to HG a fee (the “Fee”) in amount equal to the Allocation Percentage multiplied by the Employees’ salaries plus the costs of the benefits, including, without limitation, the costs of group health insurance and disability insurance (the “Benefits”), as set forth on the attached Exhibit A. The Allocation Percentage is based on the percentage of employees employed by TH and HG, respectively, as set forth in Exhibit A.
(b) By January 15 of each successive year, the parties shall submit the following: (i) a list of Employees currently employed; (ii) the total amount of the Benefits for said Employees for the preceding year; (iii) the total number of employees employed by each entity, respectively; and (iv) the percentage of employees employed by each entity respectively. The Fee for the following year shall then be calculated based on (i) – (iv) and Exhibit A shall be amended accordingly.
3.2 Payment. The Fees shall be paid in arrears monthly no later than the tenth day of each month for the immediately preceding calendar month, and if not paid by the end of the immediately preceding calendar month shall be deemed a default hereunder. All Fees not paid on or prior to such due date shall be subject to a monthly late charge of eight percent (8%) of the unpaid balance.
4. Ownership Rights. All right, title and interest in and to all products, services and materials provided to TH by the Employees under this Agreement shall be and remain the property of TH exclusively. HG shall have no right, title or interest in or to any products, services or materials that are produced in connection with the Services performed by the Employees pursuant to the terms of this Agreement. With specific regard to Xxxx Xxxxxxx, that he is a shared Employee shall not impair, limit or waive the attorney-client relationship existing between him and TH, and the privileges and confidentiality related thereto. Notwithstanding the above, HG shall retain all rights, title and interest to any and all intellectual property that it utilizes or may utilize as part of the Services.
5. Termination.
5.1 Default. If either Party (the “Defaulting Party”) materially defaults in the performance of its obligations under this Agreement, and if such default is not cured within 15 days after written notice is given to the Defaulting Party specifying the default, then the other Party may, by giving written notice to the Defaulting Party, terminate this Agreement as of the date specified in the notice of termination.
5.2 Notice by TH. TH shall have the right to terminate this Agreement by giving written notice to HG as of the date specified in such notice of termination; provided that such notice is given at least 30 days prior to the effective date of termination.
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5.3 Payments. Upon termination of this Agreement pursuant to Section 5.1 or 5.2, TH’s sole remaining obligations, except as provided for in Section 11.8, shall be to pay the Fees and late charges relating to the Services prior to the date of such termination.
5.4 Assistance. Upon any termination of this Agreement, HG will assist and comply with TH’s reasonable directions to cause the orderly transition and migration of the Services to TH or a third party contractor to whom TH chooses to transfer the Services.
6. Liability.
6.1 Indemnification. Except as provided for herein, HG shall indemnify, defend and hold harmless TH and its parent, subsidiaries, affiliated companies, and their officers, directors and employees (individually and collectively referred to as an “TH Indemnified Party”) from and against all demands, liens, claims, actions, causes of action, obligations, costs, expenses, attorneys’ fees, damages, controversies, judgments, costs of litigation and liabilities (“TH Claims”) caused by, incurred or otherwise arising from or relating to the Employees, including, without limitation, (i) any pension or other compensation or employee benefits-related liabilities, and (ii) as a result of employee legal matters, such as employee related litigation. TH shall indemnify, defend and hold harmless HG and its subsidiaries, affiliated companies, and their officers, directors and employees (individually and collectively referred to as an “HG Indemnified Party”, and collectively with the TH Indemnified Party, an “Indemnified Party”) from and against all demands, liens, claims, actions, causes of action, obligations, costs, expenses, attorneys’ fees, damages, controversies, judgments, costs of litigation and liabilities (“HG Claims”, and collectively with the TH Claims, “Claims”) caused by, incurred or otherwise arising from or relating to the actions of the Employees while performing Services on behalf of TH.
6.2 Notice and Procedures. An Indemnified Party seeking indemnification pursuant to Section 6.1 will give prompt written notice in reasonable detail (the “Notice of Claim”) to HG or TH, as the case may be, stating the basis of any Claim for which indemnification is being sought hereunder within 30 days after the Indemnified Party’s knowledge thereof; provided, however, that an Indemnified Party’s failure to provide any such notice to either TH or HG, as the case may be, will not relieve HG or TH, as the case may be, of or from any of its obligations hereunder, except to the extent that the HG or TH suffers prejudice as a result of such failure. If the facts giving rise to such indemnification involve an actual or threatened claim by or against a third party:
(a) the Parties will cooperate in the prosecution or defense of such claim and will furnish such records, information and testimony and attend to such proceedings as may be reasonably requested in connection therewith; and
(b) an Indemnified Party will make no settlement of any Claim that would give rise to liability on the part of HG or TH without HG’s or TH’s prior written consent which will not be unreasonably withheld or delayed, and HG and TH, as the case may be, will not be liable for the amount of any settlement affected without its prior written consent.
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7 . Acknowledgement. During the Term, TH shall pay the Fees and late charges to HG without any deductions made whatsoever for state or federal taxes of any kind.
8. Compliance. HG agrees to: (i) pay all applicable federal and/or state taxes which arise or relate to the employment of any Employee under this Agreement; (ii) pay all premiums and contributions with respect to the Benefits as they apply to such Employees; and (iii) comply with employer obligations with respect to HG’s employees, including the Employees, under applicable federal, state and local laws and regulations.
9. Independent Contractor Status. The Parties agree and acknowledge that HG (and any person employed by HG) is performing the Services hereunder as an independent contractor. Nothing contained in this Agreement shall be deemed to constitute either Party as an agent, representative, partner, joint venturer or employee of the other Party for any purpose.
10. Separate Expenses. All items not paid by the Parties pursuant to this Agreement shall be paid for separately by each of the Parties, including, without limitation, separate printing, postage, stationery and services rendered by third parties.
11. Miscellaneous.
11.1 Notices. All notices, requests, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed given (i) two business days after being sent by a nationally recognized overnight delivery service or (ii) upon receipt of electronic or other confirmation of transmission if sent via facsimile, in each case at the addresses or facsimile numbers (or at such other address or facsimile number for a party as shall be specified by like notice) set forth below:
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If to HG: |
Xxxxxx Gaming, Inc. 0000 |
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X. Xxxxxxx Xxxx Xxx Xxxxx, |
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Xxxxxx 00000 Attention: |
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Xxxxxx X. Xxxxxx |
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Fax: (000) 000-0000 |
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If to TH: |
Terrible Xxxxxx, Inc. |
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0000 Xxx Xxxxx
Xxxxxxxxx Xxxxx |
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Attention: Xxxxx Xxxxxx |
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Fax: 702) 000-0000 |
11.2 Entire Agreement. The provisions of this Agreement (including the attached exhibit) shall be construed to be one instrument that reflects the Parties’ entire agreement as to matters expressed herein. There are no representations, agreements, arrangements or understandings (whether oral or written) between or among the Parties relating to the subject matter of this Agreement that are not fully expressed herein.
11.3 Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
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11.4 Assignment/Change of Control. Neither Party may, without the prior written consent of the other Party, assign or transfer this Agreement, in whole or in part, either voluntarily or by operation of law, and any such assignment or transfer shall be null and void.
11.5 Governing Law; Jurisdiction. This Agreement has been executed and delivered in, and shall be governed by and construed in accordance with the internal laws (as opposed to the conflicts of law provisions) of, the State of Nevada. Any litigation arising out of or related to this Agreement shall be instituted and prosecuted only in the appropriate state or federal court situated in Xxxxx County, Nevada. Each Party hereto hereby submits to the exclusive jurisdiction and venue of such courts for purposes of any such action and the enforcement of any judgment or order arising therefrom. Each Party hereto hereby waives any right to a change of venue and any and all objections to the jurisdiction of the state and federal courts located in Xxxxx County, Nevada.
11.6 Waivers. No delay or failure by any Party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof or of such party’s right thereafter to exercise or enforce each and every right and provision of this Agreement. To be valid, a waiver shall be in writing, but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver.
11.7 Attorneys’ Fees. In the event of any action or legal proceeding between or among the Parties to enforce, protect, interpret or establish any of their rights or obligations under this Agreement or any action or legal proceeding for damages for an alleged breach of any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorneys’ fees and costs.
11.8 Survival of Certain Provisions. Notwithstanding anything contained in this Agreement, the provisions of Sections 4, 5.3, 6 and 11 shall survive the expiration of the Term or the termination of this Agreement.
11.9 Interpretation. The captions of the sections of this Agreement are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of this Agreement. Any pronouns or references used herein shall be deemed to include the masculine, feminine or neuter genders as appropriate. Any expression in the singular or the plural shall, if appropriate in the context, include both the singular and the plural.
11.10 Partial Invalidity. Each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any provisions herein are, for any reason, held to be invalid, illegal or unenforceable in any respect, such provisions shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provisions or any other provisions hereof, unless such a construction would be unreasonable.
11.11 Execution in Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall be considered an original instrument, but all of
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which together shall be considered one and the same agreement. Facsimile copies of the signature page hereof shall be deemed originals and shall be binding for all purposes.
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date.
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Xxxxxx Gaming, Inc., a Nevada corporation |
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By: |
/s/ Xxxxxx Xxxxxx |
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Its: |
Chief Executive Officer |
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Terrible Xxxxxx, Inc., a Nevada corporation |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Its: |
President |
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Xxxxx-Xxxxxxxx Industries, a Nevada corporation |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Its: |
President |
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