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EXHIBIT 10.23
Consulting Agreement
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into this
9th day of November, 2000, by and between Multimedia Games, Inc., a Texas
corporation (the "Company"), and Xxxxx Xxxxx, an individual ("Consultant").
WITNESSETH:
WHEREAS, the Company wishes to retain Consultant as an independent
consultant, in order to utilize Consultant's knowledge and expertise in matters
of interest to the Company and its affiliates, and
WHEREAS, the Company and Consultant desire to enter into this Agreement to
set forth their respective rights and obligations.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
1. Independent Consultant. The Company does hereby appoint and engage
Consultant, effective as of the date of this Agreement, as its consultant and
advisor with respect to the matters within the knowledge and expertise of
Consultant and Consultant hereby accepts such appointment and engagement for the
compensation hereinafter set forth.
The Company and Consultant specifically understand and agree that
Consultant is and shall be and remain at all times under this Agreement an
independent contractor and not the servant, agent or employee of the Company,
and that Consultant shall be free from interference or direction from the
Company as to his day-to-day activities in the performance of his duties
hereunder. Consultant shall not be considered under the provisions of this
Agreement as having employee status or as being entitled to participate in any
plans, arrangements, or distributions by the Company pertaining to or in
connection with any pension, stock bonus, profit-sharing, or any other benefit
available to a regular employee of the Company.
2. Term. Subject to the provisions for termination hereinafter set forth,
the term of this Agreement shall commence on November 9, 2000, and continue
until November 9, 2001, unless extended for additional one year terms with the
mutual consent of both parties.
3. Duties. During the term of this Agreement, Consultant agrees to consult
with the Company through its Chairman of the Board or President (or any other
person identified to
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Consultant by the Chairman of the Board or President) with respect to such
matters as are within the knowledge and expertise of Consultant and Consultant
agrees to devote all reasonably necessary time and attention to the performance
of such duties and to perform such duties diligently and to the best of his
ability; provided that, Consultant shall not be required to devote more than 20
hours of service per month to the Company.
4. Compensation. As compensation for all duties performed by Consultant
under this Agreement, the Company shall pay Consultant the sum of fourteen
thousand three hundred seventy five dollars ($14,375) per quarter, with the
first such payment due upon the execution of this Agreement and each of the next
three payments due on February 1, 2001, May 1, 2001 and August 1, 2001,
respectively.
5. Reimbursement for Expenses. Consultant shall be reimbursed for his
reasonable expenses incurred in connection with the performance of his duties
hereunder to the extent the same have been authorized in advance by an officer
of the Company and Consultant submits proper documentation with respect thereto.
6. Taxes. Any taxes or similar charges assessed against Consultant as a
result of the compensation received by him hereunder shall be for the account of
Consultant.
7. Termination. The Company shall have the right to terminate this
Agreement for the willful failure of Consultant to perform the services required
hereunder and shall also terminate upon the death of Consultant. Consultant
shall have the right to terminate this Agreement for any reason or for no reason
by giving ninety (90) days' written notice thereof to the Company.
In the event of termination under this Section 7, the Company shall pay to
Consultant or his legal representative the compensation due under Section 4
above and any amounts for which Consultant is entitled to reimbursement under
Section 5 above through the date of such termination.
8. Confidential Information. Consultant shall not, without the prior
written consent of the Company, publish, disclose or make accessible to any
person, firm or corporation, or himself use, any "Confidential Information" (as
hereinafter defined), relating to the Company and its affiliates which
Consultant may now possess or may obtain or create prior to the termination of
this Agreement. "Confidential Information" shall include all information,
whether oral or written, respecting the Company's and its affiliates' business,
including, but not limited to, existing, proposed or prospective acquisitions
and investments, customers, marketing techniques or strategies, pricing
policies, cost information, commercial relationships, financial results and
research and development. "Confidential Information" shall not include
information which is public knowledge or which shall become public knowledge
through no direct or indirect involvement on the part of Consultant.
9. Authority. Consultant shall not have the authority, express or implied,
to bind the Company and its affiliates with respect to any matter, except with
the prior consent of the Chairman of the Board or President of the Company,
which consent may be given orally or in writing.
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10. Indemnity. The Company shall indemnify and hold harmless Consultant
against and in respect of any and all damages, claims, losses, expenses, costs,
obligations and liabilities (including reasonable attorney's fees) incident to
any suit, action, investigation, claim or proceeding which Consultant may incur
or may suffer by reason of providing services pursuant to this Agreement or by
reason of acting for or on behalf of the Company pursuant to any authority
granted or delegated to Consultant under this Agreement; provided, that the
foregoing indemnification shall not include or apply to any liability arising by
reason of any act or omission of Consultant which resulted from his fraud, gross
negligence or willful misconduct or breach or default under this Agreement or
any such power or authority.
11. Remedies. Consultant acknowledges that the Company would have no
adequate remedy at law and would be irreparably harmed if Consultant would
breach any of the provisions of Section 8 above and, therefore, agrees that the
Company shall be entitled to injunctive relief to prevent any such breaches or
threatened breaches and to specific performance of such terms in addition to any
other legal or equitable remedies. Consultant further agrees that he shall not
in any proceeding in equity relating to the enforcement of Section 8 above raise
the defense that the Company has an adequate remedy at law. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any other
remedies at law or in equity which it may have.
12. Severability. If any one or more of the provisions or part of a
provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of this Agreement in any other jurisdiction or any
other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed in such jurisdiction as if such invalid, illegal
or unenforceable provision or part of a provision had never been contained
herein and such provision or part shall be reformed so that it would be valid,
legal and enforceable in such jurisdiction to the maximum extent possible.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed delivered on the date
personally delivered by hand, facsimile or by similar means, or on the third
(3rd) day after mailing if mailed to the party to whom notice is to be given by
first class mail, postage prepaid and properly addressed as follows:
If to Consultant:
at his address set forth beneath his signature to this Agreement
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If to the Company:
Multimedia Games, Inc.
0000 Xxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Either party may change its address for purposes of this Section 11 by giving
the other party written notice of the new address in the manner set forth above.
14. Assignment. Neither this Agreement nor any of the rights or obligations
hereunder may be assigned by either party hereto without the prior written
consent of the other.
15. Governing Law. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of Texas.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any and all prior and contemporaneous promises, agreements and
representations not set forth in this Agreement. This Agreement may not be
amended or modified except by a writing signed by both parties.
17. Captions. The captions and headings contained herein are solely for
convenience and reference and do not constitute a part of this Agreement.
IN WITNESS WHEREOF, the Company and Consultant have executed and delivered
this Agreement as of the day and year first above written.
MULTIMEDIA GAMES, INC.
By:
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Name:
Title:
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Xxxxx Xxxxx, Consultant
Address:
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