EXHIBIT 10.16
EXECUTION COPY
TERMINATION AND CONSULTING AGREEMENT
____________________________________
This Termination and Consulting Agreement ("Agreement") entered
into as of the 29th day of February, 2000, by and between, JACKPOT
ENTERPRISES, INC. a Nevada corporation (inclusive of its subsidiaries and
affiliates, the "Company" or the "Employer"), and XXX X. XXXXXXXXX (the
"Executive").
WHEREAS, Executive is currently employed by the Employer as
President and Chief Executive Officer pursuant to an Employment Agreement,
dated as of September 8, 1994, as amended (the "Employment Agreement"), and
is currently serving as a member of the Board of Directors of Employer (the
"Board");
WHEREAS, Employer and Executive have mutually agreed that
Executive's employment with the Employer shall terminate effective as of
February 29, 2000 (the "Termination Date");
WHEREAS, Employer and Executive desire fully and finally to
settle all matters arising out of the employment of Executive by Employer,
including without limitation, any rights or obligations under the
Employment Agreement and under any employee benefit and executive
compensation plans of Employer, that have arisen or might arise between
them; and
WHEREAS, Employer desires to ensure Executive's continued
availability to the Employer during the Consulting Period (as hereinafter
defined) and Executive is desirous of providing consulting services to
Employer on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and of the
release, representations, mutual covenants and obligations herein
contained, the parties hereto agree as follows:
i. Termination of Employment, etc. Effective as of the
_______________________________
Termination Date, Executive shall step down as President and Chief
Executive Officer, hereby resigns as a member of the Board and shall cease
to be an employee of the Company.
ii. Compensation, etc. Upon Termination.
____________________________________
A. Employer and Executive acknowledge and agree that, for
purposes of the Employment Agreement, Executive's employment shall be
deemed to have been terminated under circumstances entitling him to
benefits pursuant to Section 6(c) of the Employment Agreement.
Accordingly, the parties agree that, in full settlement of Executive's
rights under the Employment Agreement, Employer shall pay or shall cause to
be paid to Executive and shall provide benefits to Executive, as set forth
in Section 6(c) of the Employment Agreement, as follows:
(i) Employer shall pay all Accrued Obligations (as defined
in Section 6(a)(i) of the Employment Agreement) to the
Termination Date.
Such Accrued Obligations, if any, shall be paid or provided in accordance
with the terms of the applicable plan or program of the Employer, provided,
however, that in accordance with Section 6(c)(3) of the Employment
Agreement, Executive shall be treated as if he had continued in employment
until the third anniversary of the Termination Date for purposes of
computing benefits payable to the Executive under all Benefits Plans (as
defined in the Employment Agreement) in which Executive currently
participates;
(ii) Employer shall pay to Executive on the Termination Date a
lump sum cash payment of $334,000, representing the Pro Rata Bonus (as
defined in the Employment Agreement); and a lump sum cash payment of
$71,419, representing Executive's earned but unused vacation pay;
(iii) Employer shall pay to Executive on the Termination Date a
lump sum cash payment of $2,501,000, representing the severance amount
of 36 months base salary and three times the "Average Bonus" payable
under Section 6(c)(2) of the Employment Agreement;
(iv) Executive shall be entitled to receive from Employer,
throughout the Consulting Period (as hereinafter defined) and for a
period of thirty-six (36) months thereafter, the same medical
coverage, disability coverage and life insurance as are currently in
effect for Executive and his dependents, subject, however, to
reduction to the extent Executive obtains similar coverage from a
subsequent employer, and Executive hereby acknowledges that the first
18 months of such medical coverage is in full satisfaction of all of
Employer's obligations under COBRA and, in consideration thereof,
whether or not reduced subsequently, Executive waives any and all
rights to COBRA from Employer;
(v) As of the Termination Date, all currently outstanding
options held by Executive to acquire shares of Common Stock of
Employer shall become fully vested and exercisable and shall remain
exercisable until the earlier of (1) 18 months from the end of the
Consulting Period or (2) the expiration date of the term of the
applicable stock option;
(vi) To the extent properly documented and substantiated in
accordance with Company policy, Employer shall promptly reimburse
Executive for all outstanding business expenses incurred by Executive,
in accordance with Section 4(e) of the Employment Agreement; and
(vii) In full satisfaction and discharge of Employer's
obligation to provide "outplacement" for Executive under
Section 6(c)(6) of the Employment Agreement, through December
31, 2000, Executive shall continue to be provided by Employer
with office space (although not necessarily his present
office), his current administrative assistant (although not on
an exclusive basis), office supplies, support services and
other facilities and services at the level currently provided
to Executive by Employer.
All of the foregoing payments and benefits shall be subject to any
applicable federal, state and local income tax withholding.
a. As further consideration for the covenants and
obligations of Executive under this Agreement, including
but not limited to Executive's "Release" of the Company
and its directors, officers, employers and affiliates (as
hereafter provided) and Executive's agreement to perform
the consulting services described in Section 3 hereof,
(i) Employer shall continue to provide to Executive the
leased automobile currently provided to Executive for the
remainder of the current lease term which terminates on March
7, 2001, and shall pay all costs and expenses for insurance
coverage of such automobile, subject to reimbursement by
Executive in accordance with current practice; and
(ii) Executive shall be entitled to retain the laptop
computer, cellular phone and personal organizer purchased by
Employer for his use, but Executive shall bear all costs
associated with maintaining such equipment and any computer
information services.
iii. Consulting Services.
(i) During the period commencing on the Termination Date
through and including April 30, 2000, Employer shall retain the
Executive for, and the Executive agrees to perform, such consulting services
relating to renegotiation of the Company's current contractual arrangement
with RiteAid Corporation as may be requested by the Board upon reasonable
advance notice to Executive; provided, that such services shall not
unreasonably interfere with other business endeavors of the Executive.
Following April 30, 2000, the Company may elect, by written notice to
Executive, to extend the aforementioned consulting period on a month-to-month
basis with the consent of the Executive. The initial two-month consulting
period, as such period may be extended, is referred to herein as the
"Consulting Period." Executive shall perform the consulting services personally
and shall not delegate them to another person without the express written
consent of the Board. The Executive agrees to cooperate with his successor
or successors and the Employer during the Consulting Period.
(ii) In consideration of the performance of consulting
services under this Section 3, Executive acknowledges receipt of a
consulting fee for the initial two-month consulting period, in the
amount of $60,417. Consulting fees to which Executive shall be
entitled with respect to the remainder of the Consulting Period
shall be mutually agreed upon by the Company and the Executive.
(iii) Executive shall be reimbursed, in accordance
with the standard Employer policy for employee expense
reimbursement, for travel expenses, including the costs of air fare,
car rental and overnight lodging, and other reasonable expenses
incurred by Executive in the performance of such consulting
services, so long as such expenses are substantiated by appropriate
documentation.
(iv) Employer shall, to the fullest extent permitted by law,
indemnify the Executive for all amounts (including, without limitation,
judgments, fines, settlement payments, losses, damage, costs and
expenses, including reasonable attorneys' fees) incurred or paid by Executive in
connection with any action, proceeding, suit or investigation arising out of or
relating to the performance by the Executive of the consulting services
hereunder.
4. Public Announcements, etc. Executive and the Employer
shall cooperate with each other in the preparation and issuance of
any press release or other public announcement pertaining to
Executive's termination of employment and shall keep the
negotiations and the terms of this Agreement completely confidential
(except as may be required (i) in the course of obtaining legal
advice with respect to the negotiation hereof or with respect to the
rights and obligations created hereby, (ii) in the preparation of
federal, state or local tax returns, (iii) in the course of
enforcing any right or obligation under this Agreement, or (iv) by
law or legal process).
5. Effect on Employment Agreement. (a) The provisions
of Sections 3(b) (Indemnification), 8 (Noncompetition and
Nondisclosure) and 9 (Return of Confidential Information and
Enforcement) of the Employment Agreement shall survive the
termination thereof and shall remain in full force and effect.
Except as otherwise contemplated hereby, Executive shall deliver all
Company property, records and other information, including those
referred to in Section 9 of the Employment Agreement, to the Company
as promptly as practicable following the Termination Date. In all
other respects, except as provided herein or as may be necessary to
implement the provisions hereof, the Employment Agreement shall
terminate and be of no further force and effect as of the
Termination Date. In the event the Company elects to seek
injunctive relief to enforce rights under Sections 8 or 9 of the
Employment Agreement, it may do so in the State courts of Nevada, or
in the United States District Court in Nevada, and Executive hereby
consents to personal jurisdiction and venue in any such Nevada court
for that purpose throughout the "Restricted Period", as defined in
the Employment Agreement.
(ii) The Executive and the Company agree that they will
not now or at any time in the future make any disparaging statements
relating to each other to the Company's directors, officers, and/or
employees, whether relating to the business of the Company, the
actions of either party to this Agreement, or in any other manner.
During the Restricted Period, Executive will cooperate with any
reasonable request of the Company for information or assistance with
respect to its "Route Business" (including but not limited to the
current dispute with RiteAid Corporation) to the extent it does not
interfere with Executive's then employment or other business
endeavors, and shall be promptly reimbursed for all reasonable out-
of-pocket costs and expenses incurred in connection herewith.
6. Release. (a) In consideration of the payments and
benefits provided pursuant to Section 2 of this Agreement and
subject to paragraph (b) hereof, Executive hereby agrees to and does
fully and completely release, discharge and waive any and all
claims, complaints, causes of action, actions, suits, debts, sums of
money, contracts, controversies, agreements, promises, or demands of
whatever kinds, in law or in equity, which he ever had, now has or
which he, his heirs, executors or administrators may have against
the Employer and its subsidiaries, predecessors, affiliates,
successors and assigns, and each and all of their officers and
directors, in their capacities as such (collectively, the
"Releasees"), by reason of any event, matter, cause or thing which
has occurred to the date of execution of this Agreement, relating in
any way to the Executive's employment relationship with the Employer
or to his termination thereof, whether for severance or based on
statutory or common law claims for employment discrimination,
wrongful discharge, breach of contract or any other theory, whether
legal or equitable, or arising under any statute or regulation,
including the Age Discrimination in Employment Act of 1967, Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991,
the Americans with Disabilities Act of 1990, the Employee Retirement
Income Security Act of 1974, and the Family Medical Leave Act of
1993, each as amended, or any other federal, state or local law,
regulation, ordinance or common law.
(ii) The Executive acknowledges and agrees that he has
twenty-one (21) calendar days from the date he first receives this
Agreement, as indicated by the date first written above, to obtain
the advice and counsel from the legal representative of his choice
and to decide whether to execute this Agreement.
(iii) The Executive understands that for seven (7) calendar days
after he signs this Agreement, he has the right to revoke it, and this
Agreement shall not become effective and enforceable until after the passage
of the seven-day period without his having revoked it. The other provisions of
this Agreement to the contrary notwithstanding, no money and/or benefits
payable solely by virtue of this Agreement shall be made until after the
passage of the seven-day period without the Executive having revoked it.
The Agreement may not be revoked after the seven-day period. Any revocation
shall be in writing and directed to the address referred to in Section 8 hereof.
(iv) Nothing herein shall be deemed to release (i) any of the
Executive's rights under this Agreement (including those rights under the
Employment Agreement which survive under, or are incorporated in, this
Agreement), (ii) any of the benefits that the Executive has accrued and to which
Executive is entitled under the Employer's various employee benefit plans,
programs and policies or (iii) any rights to indemnification or to directors and
officers liability insurance under the Certificate of Incorporation or By-laws
or the Employer or any affiliate or pursuant to the provisions of any plan or
agreement.
7. Successors; Binding Agreement.
(a) Employer will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business and/or assets of
Employer to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Employer would be
required to perform it if no such succession had taken place. As
used in this Agreement, "Employer" shall mean the Employer as
hereinbefore defined and any successor to its business and/or assets
as aforesaid or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive
hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
8. Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given when
delivered or (unless otherwise specified) mailed by United States
certified or registered mail, return receipt requested, postage pre-
paid, addressed as follows:
If to the Employer:
Jackpot Enterprises, Inc.
0000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: President
With a copy to:
Xxxxxx X. Xxxxxx
Camhy, Xxxxxxxxx & Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, X.X. 00000-0000
If to the Executive:
Xxx X. Xxxxxxxxx
c/o Jackpot Enterprises, Inc.
0000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxx
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Four Times Square
New York, New York 10036-6522
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
9. Miscellaneous. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Executive and such
officer of the Employer as may be specifically designated by the
Board. No waiver by either party hereto at any time of any breach
by the 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 similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, express or im-
plied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the state of Nevada with-
out regard to its conflicts of law principles.
10. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
11. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same
instrument.
12. Arbitration; Reimbursement of Expenses. Except as set
forth in Section 9(b) of the Employment Agreement, any dispute or
controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, conducted before a panel of
three arbitrators in Las Vegas, Nevada, or in such other location as
may be agreed upon by the parties, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdic-
tion. In the event of (a) any arbitration that is commenced by the
Executive in good faith pursuant to this Section 12 or (b) any
arbitration that is commenced by Employer pursuant to this Section
12 in which the Executive shall prevail, the Employer shall xxxx-
xxxxx the Executive for all legal fees incurred by the Executive in
connection therewith. The Employer shall pay Executive's legal fees
incurred in connection with entering into this Agreement and shall
pay or reimburse Executive for all other expenses (including
regulatory-related expenses) incurred in connection with his
termination of employment or his activities pursuant to the
consulting arrangement described herein.
13. Entire Agreement. This Agreement and the applicable
provisions of the Employment Agreement set forth the entire
agreement of the parties hereto in respect of the subject matter
contained herein and supersede any and all other prior agreements,
promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of the
parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled. Executive acknowledges that he has
not relied on any oral or written representations not explicitly
contained herein in entering into and executing this Agreement
IN WITNESS WHEREOF, the parties have executed this Agree-
ment as of the date and year first above written.
JACKPOT ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxx
__________________________
Name: Xxxxx X. Xxxxxxx
Title: Chairman
/s/ Xxx X. Xxxxxxxxx
__________________________
Xxx X. Xxxxxxxxx
