UNISTAR GAMING CORP.
EMPLOYMENT AGREEMENT
Xxxxxxx X. Xxxxxxxxxx
Exhibit 10.9
AGREEMENT made as of this 31st day of August 1998, by and
between Unistar Gaming Corp., a Delaware corporation with its principal office
at 000 Xxxxxxxx Xxxxx Xxxx (the "Corporation"), and Xxxxxxx X. Xxxxxxxxxx,
residing at 00 Xxx Xxxxxx Xxxx; Xxx Xxxx Xxxx, XX 00000 ("Executive").
W I T N E S S E T H :
WHEREAS, Executive has heretofore been employed by the
Corporation;
WHEREAS, the Corporation desires to continue to employ
Executive, and Executive is willing to undertake such employment, upon the terms
and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants Hereinafter set forth, the parties hereto agree as follows:
1. Employment of Executive. The Corporation hereby employs
Executive as its Vice President, Sales and Marketing--Governmental Lotteries to
perform the duties and responsibilities incident to such office, subject at all
times to the normal control and direction of the President and Board of
Directors of the Corporation (the "Board of Directors").
2. Acceptance of Employment; Time and Attention. Executive
hereby accepts such employment and agrees that throughout the Term (as
hereinafter defined), he will devote substantially his full time, attention,
knowledge and skills, faithfully, diligently and to the best of his ability, in
furtherance of the business of the Corporation, and will perform the duties
assigned to him pursuant to Section 1 hereof, subject, at all times, to the
normal direction and control of the President and the Board of Directors.
Executive shall be the executive officer responsible for the day to day
sales and marketing of the Corporation's products and services to the various
lotteries operated by governmental agencies. Executive shall also perform such
specific duties and shall exercise such specific authority related to the
management of the day-to-day operations of the Corporation consistent with his
position as Vice President, Sales and Marketing--Governmental Lotteries as may
be assigned to Executive from time to time by the President or Board of
Directors.
Executive shall at all times be subject to, observe and carry out such
rules, regulations, policies, directions and restrictions as the Corporation
shall from time to time establish. During the Term, Executive shall not, without
the written approval of the President or Board of Directors first had and
obtained in each instance, directly or indirectly, accept employment or
compensation from, or perform services of any nature for, any business
enterprise other than the Corporation and its subsidiaries. Notwithstanding the
foregoing but subject to Section 9 hereof, Executive shall be permitted to (i)
serve as a director on the boards of directors of other corporations and retain
any compensation paid therefor, provided that such other interests do not
materially interfere with the performance by Executive of his obligations
hereunder and (ii) engage in business affairs outside the business of the
Corporation provided that such other interests do not materially interfere with
his obligations hereunder. During the Term, Executive shall not be entitled to
additional compensation for rendering employment services to subsidiaries of the
Company or for serving in any office of the Corporation or any of its
subsidiaries to which he is elected or appointed. The Board shall have the right
to renew board memberships to avoid any potential conflict of interest.
Executive shall be permitted to establish a geographic base from which to
perform his duties hereunder.
3. Term. Except as otherwise provided herein, Executive's employment
hereunder shall be for a three (3) year term commencing as of from the effective
date (the "Effective Date") of the separation of the Corporation from EXECUTONE
Information Systems, Inc. expected to occur in December 1998 (the "Initial
Term"), which may be renewed for such one (1) year periods as the Corporation
and Executive may mutually agree during the ninety (90) day period immediately
prior to the expiration of the Initial Term or any renewal thereof (the Initial
Term and any such renewal thereof are hereinafter collectively referred to as
the "Term").
4. Compensation. The Corporation shall pay to the Executive, commencing as
of the Effective Date for the first year of his employment, compensation at the
rate of one hundred fifty thousand dollars ($150,000) per year ("Base Salary").
For each year thereafter, the Base Salary shall be such higher amount as shall
be determined by the President or Board of Directors. Such compensation shall be
payable in equal biweekly installments. In addition, Executive shall be entitled
to receive from the Corporation such bonus (the "Bonus") equal to 35% of Base
Salary to be earned 50% based upon the achievement of specific management
objectives set in the beginning of the year and 50% based upon achieving annual
PBT or other quantitative financial goals approved by the Board of Directors.
All compensation paid to Executive shall be subject to withholding and other
employment taxes imposed by applicable law.
5. Additional Benefits.
(a) In addition to such Base Salary, he (and his family) shall be
entitled to participate, to the extent he is (and they are) eligible under the
terms and conditions thereof, in any profit-sharing, pension, retirement,
hospitalization, insurance, disability, medical service, stock option, bonus or
other employee benefit plan generally available to the executive officers of the
Corporation that may be in effect from time to time during the Term, as well as
any discretionary bonus pool of the Corporation. The Corporation shall be under
no obligation to institute or continue the existence of any such employee
benefit plan.
(b) Stock Options.
(i) The Corporation will issue stock options for 50,000 shares of
Stock at an exercise price of the fair market value determined in the
Corporation's Registration Statement on Form S-1 of $1.28 per share. Vesting
will be 1/3 of the shares on September 1, 1999 and 8.33% at the end of each
calendar quarter thereafter.
(ii) In addition, Executive shall be entitled to receive from the
Corporation additional stock options as the Board of Directors shall in its sole
discretion determine.
(iii) In the event of a Change in Control (as defined herein),
all options referenced in Section 5(d)(i) above shall become fully vested and
immediately exercisable. "Change of Control" shall be deemed to have taken place
if: (i) any person, including a group, becomes the beneficial owner of shares of
the Corporation sufficient in manner to control the election of directors of the
Corporation; or (ii) there occurs any cash tender or exchange offer for shares
of the Corporation, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions, and as a
result of or in connection with any such event persons who were directors of the
Corporation before the event shall cease to constitute a majority of the Board
of Directors of the Corporation or any successor to the Corporation. As used
herein, the terms "person" and "beneficial owner" have the same meaning as such
terms under Section 13(d) of the Securities Exchange Act of 1934, as amended,
and the rules and regulations hereunder.
6. Reimbursement of Expenses. The Corporation shall reimburse Executive in
accordance with applicable policies of the Corporation for all expenses
reasonably incurred by Executive in connection with the performance of his
duties hereunder and the business of the Corporation, including expenses
relating to the operation and maintenance of a motor vehicle (including, but not
limited to, vehicle loan and lease payments, insurance premiums, parking,
gasoline and repair expenditures) upon the submission to the Corporation of
appropriate receipts or vouchers.
7. Facilities and Personnel. Executive shall be provided a private office,
secretarial services and such other facilities, supplies, personnel and services
as shall be required or reasonably requested for the performance of his duties
hereunder.
8. Vacation. Executive shall be entitled to four (4) weeks' paid vacation
in respect of each twelve (12) month period during the Term, such vacation to be
taken at times mutually agreeable to Executive and the Board of Directors and in
accordance with the Corporation's vacation policy.
9. Restrictive Covenant. In consideration of the Corporation's entering
into this Agreement, Executive agrees that during the Term, and for a period of
eighteen (18) months thereafter he will not: (i) directly or indirectly own,
manage, operate, join, control, participate in, invest in, or otherwise be
connected with, in any manner, whether as an officer, director, employee,
partner, investor or otherwise, any business entity that is engaged in the
lottery or casino business or any other business which the corporation is then
engaged in; (ii) for himself or on behalf of any other person, partnership,
corporation or entity, call on any customer of the Corporation for the purpose
of soliciting, diverting or taking away any customer from the Corporation; or
(iii) induce, influence, or seek to induce or influence, any person engaged as
an employee, representative, agent, independent contractor or otherwise by the
Corporation, to terminate his or her relationship with the Corporation. Nothing
herein contained shall be deemed to prohibit Executive from investing his funds
in securities of an issuer if the securities of such issuer are listed for
trading on a national securities exchange or are traded in the over-the-counter
market and Executive's holdings therein represent less than 1% of the total
number of shares or principal amount of the securities of such issuer
outstanding.
Executive acknowledges that the provisions of this Section 9 are
reasonable and necessary for the protection of the Corporation, and that each
provision, and the period or periods of time, geographic areas and types and
scope of restrictions on the activities specified herein are, and are intended
to be, divisible. If any provision of this Section 9, including any sentence,
clause or part hereof, shall be deemed contrary to law or invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions shall not be affected, but shall, subject to the discretion of such
court, remain in full force and effect and any invalid and unenforceable
provisions shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited to the extent necessary to render the same
valid and enforceable.
10. Confidential Information. Executive shall hold in a fiduciary capacity
for the benefit of the Corporation all information, knowledge and data relating
to or concerned with its operations, sales, business and affairs, and he shall
not, at any time for a period of one year after termination of his employment
hereunder, use, disclose or divulge any such information, knowledge or data to
any person, firm or corporation (unless the Corporation no longer treats such
information as confidential) other than to the Corporation or its designees and
employees or except as may otherwise be required in connection with the business
and affairs of the Corporation; provided, however, that Executive may disclose
or divulge such information, knowledge or data that: (i) was known to Executive
at the commencement of his employment with the Corporation; (ii) is or becomes
generally available to the public through no wrongful act on Executive's part;
or (iii) becomes available to Executive from a person or entity other than the
Corporation, except nothing in this Agreement shall be deemed to permit
Executive's disclosure or use of any confidential or proprietary information of
EXECUTONE Information Systems, Inc.; and provided, further, that the provisions
of this Section 10 shall not apply to Executive's know-how to the extent
utilized by him in subsequent employment otherwise than in breach of this
Agreement.
11. Intellectual Property. Any idea, invention, design, written material,
manual, system, procedure, improvement, development or discovery, developed,
created or made by Executive alone or with others, during the Term and
applicable to the business of the Corporation, whether or not patentable or
registrable, shall become the sole and exclusive property of the Corporation.
Executive shall disclose the same promptly and completely to the Corporation and
shall, during the Term and at any time and from time to time hereafter: (i)
execute all documents requested by the Corporation for vesting in the
Corporation the entire right, title and interest in and to the same; (ii)
execute all documents requested by the Corporation for filing and prosecuting
such applications for patents, trademarks, service marks and/or copyrights as
the Corporation, in its sole discretion, may desire to prosecute; and (iii) give
the Corporation all assistance it reasonably requires, including the giving of
testimony in any suit, action or proceeding, in order to obtain, maintain and
protect the Corporation's right therein and thereto.
12. Equitable Relief. The parties hereto acknowledge that Executive's
services are unique and that, in the event of a breach or a threatened breach by
Executive of any of his obligations under this Agreement, the Corporation shall
not have an adequate remedy at law. Accordingly, in the event of any such breach
or threatened breach by Executive, the Corporation shall be entitled to such
equitable and injunctive relief as may be available to restrain Executive and
any business, firm, partnership, individual, corporation or entity participating
in such breach or threatened breach from the violation of the provisions hereof.
Nothing herein shall be construed as prohibiting the Corporation from pursuing
any other remedies available at law or in equity for such breach or threatened
breach, including the recovery of damages and the immediate termination of the
employment of Executive hereunder.
13. Termination for Cause.
(a) The Corporation may at any time dismiss Executive for "Cause."
For purposes of this Agreement, the following shall constitute "Cause:" (i) the
death of Executive; (ii) the failure of Executive, as a result of illness,
physical or mental disability or other incapacity to render the services
provided in this Agreement for a period of one hundred eighty (180) consecutive
days or one hundred eighty (180) days during any one (1) year period
("Disability"); or (iii) the breach by Executive of a fiduciary duty in the
performance of his duties hereunder or a breach of a material term of this
Agreement, including (x) theft, embezzlement, fraud, misappropriation of funds,
other acts of dishonesty or the violation of any law relating to Executive's
employment; (y) Executive shall have entered a plea of guilty or nolo contender
to, or have been found by a court of competent jurisdiction to be guilty of a
felony or other crime involving moral turpitude; and (z) the breach by Executive
of any other material provision of this Agreement, which breach is not cured to
the Corporation's reasonable satisfaction within thirty (30) days after written
notice thereof.
(b) In the event of Executive's Disability, he shall be entitled to
receive the Base Salary payments due under Section 4 hereof during the period of
his Disability and for a period of eighteen (18) months thereafter.
(c) In the event of termination of Executive's employment
hereunder by reason of his death, the Corporation shall pay a benefit (the
"Benefit Payment") to such person or persons as Executive shall, at his option,
from time to time designate by written instrument delivered to the Corporation,
each subsequent designation to revoke all prior designations, or if no such
designation is made, to Executive's estate (the "Payment Beneficiary"). The
Benefit Payment shall be in an amount equal to one and one-half times
Executive's then current Base Salary, and shall be payable to the Payment
Beneficiary in equal quarterly installments over a period of one and one-half
years; provided that if the Corporation then maintains a life insurance policy
on the life of Executive under which it is the beneficiary, the amount of the
death benefit payable thereunder, to a maximum amount equal to the Benefit
Payment, less installments of the Benefit Payment theretofore paid, shall be
paid to the Payment Beneficiary on the Benefit Payment installment payment date
next succeeding the date on which the Corporation receives such death benefit
proceeds, and the remainder of the Benefit Payment, if any, shall be paid in
equal quarterly installments as provided above.
14. Separation Payments. If prior to termination of this Agreement, there
should be the occurrence of any of the following: (i) Executive's services
should be terminated for any reason other than Executive's voluntary withdrawal
or Cause; (ii) Executive is placed in any position of lesser stature than that
of a senior executive officer of the Corporation; is assigned duties
inconsistent with a senior executive officer or duties which, if performed,
would result in a significant change in the nature or scope of powers,
authority, functions or duties inherent in such position on the date hereof; is
assigned performance requirements or working conditions which are at variance
with the performance requirements and working conditions in effect on the date
hereof; or is accorded treatment on a general basis that is in derogation of his
status as a senior executive officer; or (iii) any breach of Sections 4 through
8, inclusive, of this Agreement.
In such event, upon the Executive's termination of his employment as
provided in this Section 14, the Corporation will, on or before Executive's last
day of providing service hereunder, pay to Executive, as liquidated damages, a
lump sum cash payment equal to the Factor time Base Salary (unless the Factor
times Base Salary is greater than the "base amount" of Executive's compensation,
in which case the amount paid to Executive hereunder shall be the "base amount"
of Executive's compensation). For purposes hereof, "base amount" shall have the
meaning provided in Section 280G(b)(3)(A) of the Internal Revenue Code of 1986,
as amended, and the Proposed Regulations thereunder. The "Factor" will be 2.99
for the first 12 months of the Agreement; 2.00 for the second 12 months of the
Agreement; and 1.00 for the remainder of the term of the Agreement. The
Corporation will also continue to provide, for the remaining term of the
Agreement, participation in the same or comparable employee benefits in which
Executive was participating on the date of termination, on the same basis as the
Executive was then participating.
15. Insurance Policies. The Corporation shall have the right from time to
time to purchase, increase, modify or terminate insurance policies on the life
of Executive for the benefit of the Corporation, in such amounts as the
Corporation shall determine in its sole discretion. In connection therewith,
Executive shall, at such time or times and at such place or places as the
Corporation may reasonably direct, submit himself to such physical examinations
and execute and deliver such documents as the Corporation may deem necessary or
desirable.
16. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the parties hereto, and any prior agreement between the Corporation
and Executive is hereby superseded and terminated effective immediately and
shall be without further force or effect. No amendment or modification shall be
valid or binding unless made in writing and signed by the party against whom
enforcement thereof is sought.
17. Notices. Any notice required, permitted or desired to be given
pursuant to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or by
responsible overnight delivery service or sent by certified mail, return receipt
requested, postage and fees prepaid as follows:
If to the Corporation, at its address set forth above,
with copies to:
-----------------------
-----------------------
-----------------------
If to Executive, at his address set forth above. Either of the parties
hereto may at any time and from time to time change the address to which notice
shall be sent hereunder by notice to the other party given under this Section
18. The date of the giving of any notice hand delivered or delivered by
responsible overnight carrier shall be the date of its delivery and of any
notice sent by mail shall be the date five days after the date of the posting of
the mail.
18. No Assignment; Binding Effect. Neither this Agreement, nor the right
to receive any payments hereunder, may be assigned by Executive. This Agreement
shall be binding upon Executive, his heirs, executors and administrators and
upon the Corporation, its successors and assigns.
19. Waivers. No course of dealing nor any delay on the part of the
Corporation in exercising any rights hereunder shall operate as a waiver of any
such rights. No waiver of any default or breach of this Agreement shall be
deemed a continuing waiver or a waiver of any other breach or default.
20. Governing Law. This Agreement shall be governed, interpreted and
construed in accordance with the laws of the State of New York, except that body
of law relating to choice of laws.
21. Invalidity. If any clause, paragraph, section or part of this
Agreement shall be held or declared to be void, invalid or illegal, for any
reason, by any court of competent jurisdiction, such provision shall be
ineffective but shall not in any way invalidate or affect any other clause,
paragraph, section or part of this Agreement.
22. Further Assurances. Each of the parties shall execute such documents
and take such other actions as may be reasonably requested by the other party to
carry out the provisions and purposes of this Agreement in accordance with its
terms.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed as of the day and year first above written.
UNISTAR GAMING CORP.
By: ________________________
Xxxxxxx X. Xxxxxx
Title: Chairman of the Board,
Executone
------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Sales and
Marketing--Government Lotteries
