EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
August 17, 1999, between Hard Rock Hotel, Inc., a Nevada corporation (the
"Company"), and Xxxx Xxxxxxxx, an individual ("Executive").
PRELIMINARY STATEMENTS
A. The Company currently operates that certain hotel/casino resort
known as the "Hard Rock Hotel" located at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxx.
B. The Company desires to employ Executive, and Executive desires to
be so employed, on the terms and conditions herein contained.
AGREEMENT
NOW, THEREFORE, in consideration of the various covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby employs Executive and
Executive accepts such employment commencing on the date of this Agreement
(the "Commencement Date") and terminating on the second anniversary of the
Commencement Date, unless sooner terminated as hereinafter provided;
PROVIDED, HOWEVER, that this Agreement may be extended for successive one (1)
year terms upon the mutual agreement of the parties hereto.
2. SERVICES TO BE RENDERED.
2.1. DUTIES OF EXECUTIVE. Executive shall be employed to serve
in the capacity of Vice President of Gaming Operations of the Company.
Executive shall be responsible for the overall supervision, direction, and
control of the casino operations of the Hard Rock Hotel facility, including
table games, slots, race and sports books, casino marketing, player
development, data base and direct mail marketing, and special events.
Executive shall direct those operating departments with a view toward revenue
growth, profitability and high standards of customer service. Executive
shall devote his full business time, attention and ability to the affairs of
the Company during the term of this Agreement; PROVIDED, HOWEVER, that
Employee shall not be precluded from involvement in charitable or civic
activities or his personal financial investments provided that the same do
not interfere with his time and attention to the affairs of the Company.
Executive will report directly to the Senior Vice President and General
Manager or such other person designated by the Board of Directors of the
Company (the "Board").
3. COMPENSATION AND BENEFITS. The Company shall pay the following
compensation and benefits to Executive during the term hereof; and Executive
shall accept the same as payment in full for all services rendered by
Executive to or for the benefit of the Company:
3.1. BASE SALARY. Commencing on the Commencement Date, a base
salary (the "Base Salary") of $125,000 per annum. The Base
Salary shall accrue in equal bi-weekly installments in
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arrears and shall be payable in accordance with the
payroll practices of the Company in effect from time to
time.
3.2. ANNUAL BONUS. Executive shall be eligible to receive an
annual bonus (the "Annual Bonus") to be determined by the
Board based upon the achievement of the financial
performance and other objectives of the Company and
Executive's contribution to such performance.
3.3. STOCK. Executive shall be entitled to participate in
stock option plans that the Company provides to its
comparable senior executive officers to the extent such
plans are established by the Company.
3.4. EXPENSES. The Company shall reimburse Executive for
reasonable out-of-pocket expenses incurred in connection
with the performance of his duties hereunder, subject to
(i) such policies as the Board may from time to time
establish and (ii) Executive furnishing the Company with
evidence in the form of receipts satisfactory to the
Company substantiating the claimed expenditures.
3.5. VACATION. Executive shall be entitled to the number of
paid vacation days in each calendar year determined by the
Company from time to time for its comparable senior
executive officers. Executive shall also be entitled to
all paid holidays given to the Company's comparable senior
executive officers.
3.6. BENEFITS. Executive shall be entitled to participate in
the Company's group insurance, hospitalization, and group
health and benefit plans and all other benefits and plans
as the Company provides to its comparable senior executive
officers to the extent such plans are established by the
Company and to the extent that Executive is eligible to
participate in such plans.
3.7. WITHHOLDING AND OTHER DEDUCTIONS. All compensation
payable to Executive hereunder shall be subject to such
deductions as the Company is from time to time required to
make pursuant to law, governmental regulation or order.
4. FACILITIES. Executive shall be furnished with an office,
supplies and personnel which are necessary or appropriate for the adequate
performance by Executive of his duties as set forth in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. Executive
represents and warrants to the Company that (i) Executive is under no
contractual or other restriction or obligation which is inconsistent with the
execution of this Agreement, the performance of his duties hereunder, or the
other rights of the Company hereunder and (ii) Executive is under no physical
or mental disability that would hinder the performance of his duties under
this Agreement.
6. NON-DISCLOSURE; NON-SOLICITATION. During the term of this
Agreement and thereafter, Executive shall hold in a fiduciary capacity for
the benefit of the Company all secret or confidential
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information, knowledge or data relating to the Company or its affiliates, and
their respective businesses, which shall not be public knowledge (other than
information which becomes public as a result of acts of Executive or his
representatives in violation of this Agreement), including, without
limitation, customer/ client lists, matters subject to litigation, and
technology or financial information of the Company or its subsidiaries,
without the prior written consent of the Company. In addition, during the
term of this Agreement and for a two (2) year period thereafter, Executive
shall not, directly or indirectly, solicit or contact any employee of the
Company or any affiliate of the Company, with a view to inducing or
encouraging such employee to leave the employ of the Company or its
affiliates, for the purpose of being employed by Executive, an employer
affiliated with Executive or any competitor of the Company or any affiliate
thereof. Executive acknowledges that the provisions of this Article 6 are
reasonable and necessary for the protection of the Company and that the
Company will be irrevocably damaged if such provisions are not specifically
enforced. Accordingly, Executive agrees that, in addition to any other relief
to which the Company may be entitled in the form of actual or punitive
damages, the Company shall be entitled to seek and obtain injunctive relief
from a court of competent jurisdiction (without posting a bond therefor) for
the purpose of restraining Executive from any actual or threatened breach of
such provisions.
7. TERMINATION.
7.1. DEATH OR TOTAL DISABILITY OF EXECUTIVE. If Executive
dies or becomes totally disabled during the term of this Agreement,
Executive's employment hereunder shall automatically terminate. For these
purposes Executive shall be deemed totally disabled if Executive shall become
physically or mentally incapacitated or disabled or otherwise unable fully to
discharge Executive's essential duties hereunder for a period of ninety (90)
consecutive calendar days or for one hundred twenty (120) calendar days in
any one hundred eighty (180) calendar-day period.
7.2. TERMINATION FOR GOOD CAUSE. Executive's employment
hereunder may be terminated by the Company for "good cause." The term "good
cause is defined as any one or more of the following occurrences:
(a) Executive's breach of any of the covenants
contained in Article 6 of this Agreement;
(b) Executive's conviction by, or entry of a plea of
guilty or nolo contendere in, a court of competent and final jurisdiction for
any crime involving moral turpitude or punishable by imprisonment in the
jurisdiction involved;
(c) Executive's commission of an act of fraud,
whether prior to or subsequent to the date hereof upon the Company;
(d) Executive's continuing repeated willful failure
or refusal to perform Executive's duties as required by this Agreement
(including, without limitation, Executive's inability to perform Executive's
duties hereunder as a result of drug or alcohol related misconduct
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and/or as a result of any failure to comply with any laws, rules or
regulations of any governmental entity with respect to Executive's employment
by the Company);
(e) Executive's gross negligence, insubordination or
material violation of any duty of loyalty to the Company or any other
material misconduct on the part of Executive;
(f) Executive's commission of any act which is
detrimental to the Company's business or goodwill;
(g) the failure of Executive to obtain any requisite
license, permit or approval based on suitability from any state, county, or
other governmental authority having jurisdiction over the gaming operations
of the Company (the "Gaming Authorities") which would preclude Executive from
carrying out his duties as set forth in this Agreement;
(h) if, after the initial receipt by Executive of any
requisite license, permit or approval from the Gaming Authorities, the
execution of Executive's duties as set forth in this Agreement will, as
evidenced by communications from any senior official of any of the Gaming
Authorities, materially preclude or unduly delay the issuance of, or result
in the imposition of unduly burdensome terms and conditions on, or revocation
of, any liquor, gaming or other license, permit or approval, necessary or
appropriate to the proposed, contemplated or actual operations of the
Company; PROVIDED, HOWEVER, that this Section 7.2(h) shall not be applicable
if Executive shall, within a reasonable period of time after receipt of
written notice from the Board specifying the nature of the issues involved
hereunder, remedy the situation to the satisfaction of the applicable Gaming
Authorities; or
(i) Executive's breach of any other provision of this
Agreement, provided that termination of Executive's employment pursuant to
this subsection (i) shall not constitute valid termination for good cause
unless Executive shall have first received written notice from the Board
stating with specificity the nature of such breach and affording Executive at
least fifteen (15) days to correct the breach alleged.
7.3. RESIGNATION OF EXECUTIVE. The Company shall have the
right to terminate this Agreement and Executive's employment hereunder due to
the voluntary resignation of Executive, provided that Executive shall deliver
no less than sixty (60) days prior written notice of such resignation to the
Board, which notice may be waived by the Company in its sole discretion.
7.4. SEVERANCE COMPENSATION. Notwithstanding anything
contained in this Agreement, upon a termination of this Agreement and
Executive's employment hereunder due to the occurrence of any of the events
referred to in Section 7.1, 7.2 or 7.3 of this Agreement, Executive (or
Executive's heirs or representatives) shall be entitled to receive only such
portion (if any) of the Base Salary as may theretofore have accrued but be
unpaid on the date on which the termination shall take effect.
7.5. TERMINATION FOR NO CAUSE. In addition to the right to
terminate this Agreement pursuant to Sections 7.1, 7.2 and 7.3 of this
Agreement, the Company shall have the right to terminate this Agreement and
Executive's employment hereunder for any other reason or for no
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reason prior to the expiration of the term of this Agreement. In the event
that the Company terminates this Agreement and Executive's employment
hereunder pursuant to this Section 7.5, the Company shall give ten (10) days
prior written notice to Executive and pay a termination fee to Executive in
an amount equal to the lesser of (i) Sixty-two Thousand Five Hundred Dollars
($62,500) or (ii) the remainder of the Base Salary which would otherwise be
due Executive pursuant to this Agreement but for such termination, to be paid
in the manner and at the rate Executive had received immediately prior to
such termination pursuant to Section 3.1 of this Agreement and the Company
shall have no further obligation to Executive under this Agreement.
7.6. TERMINATION OBLIGATIONS OF EXECUTIVE. In the event that
this Agreement and Executive's employment hereunder is terminated, Executive,
or his legal representative in case of termination by death or Executive's
physical or mental incapacity to serve, shall:
(a) by the close of the effective date of
termination, resign from all corporate positions held in the Company and any
of its subsidiary and affiliated companies;
(b) promptly return to a representative designated by
the Company all property, including but not limited to, keys, identification
cards and credit cards of the Company or any of its subsidiaries or
affiliated companies; and
(c) incur no further expenses or obligations on
behalf of the Company, or any of its subsidiaries and affiliated companies.
8. ARBITRATION. Any claim or controversy arising out of or
relating to this Agreement shall be settled by arbitration in Las Vegas.
Nevada, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction. There shall be
three arbitrators, one to be chosen directly by each party at will, and the
third arbitrator to be selected by the two arbitrators so chosen. Each party
shall pay the fees of the arbitrator it selects and of its own attorneys, the
expenses of its witnesses and all other expenses connected with presenting
its case. Other costs of the arbitration, including the cost of any record or
transcripts of the arbitration, administrative fees, the fee of the third
arbitrator, and all other fees and costs, shall be borne equally by the
parties hereto.
9. GENERAL RELATIONSHIP. Executive shall be considered an employee
of the Company within the meaning of all federal, state and local laws and
regulations including, but not limited to, laws and regulations governing
unemployment insurance, workers' compensation, industrial accident, labor and
taxes.
10. GENERAL PROVISIONS.
10.1. BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns and
Executive, his assignees, and his estate. Neither Executive, his designees,
nor his estate shall commute, pledge, encumber, sell or otherwise
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dispose of the rights to receive the payments provided in this Agreement,
which payments and the rights thereto are expressly declared to be
nontransferable and nonassignable (except by death or otherwise by operation
of law).
10.2. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Nevada from time to time in effect.
10.3. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
10.4. NO WAIVER. Except as otherwise expressly set forth
herein, no failure on the part of either party hereto to exercise and no
delay in exercising any right, power or remedy hereunder shall operate as a
waiver hereof nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
10.5. HEADINGS. The headings of the Articles and Sections of
this Agreement have been inserted for convenience of reference only and shall
in no way restrict any of the terms or provisions hereof.
10.6. NOTICES. Any notice under this Agreement shall be given
in writing and delivered in person or mailed by certified or registered mail,
addressed to the respective party at the address as set out below, or at such
other address as either party may elect to provide in advance in writing, to
the other party:
EXECUTIVE:
Xxxx Xxxxxxxx
0000 Xxxx Xxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
COMPANY:
Hard Rock Hotel, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
WITH A COPY TO:
Xxxxxxx Xxxxxx
0000 Xxxx xx Xxxxxxx Xxxxx
000 X Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxxxx
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10.7. SEVERABILITY. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, or
unenforceable by reason of any rule of law or public policy, all other
provisions of this Agreement shall nevertheless remain in effect. No
provision of this Agreement shall be deemed dependent on any other provision
unless so expressed herein.
10.8. COMPLIANCE WITH LAWS; GAMING AUTHORITIES APPROVAL.
Nothing contained in this Agreement shall be construed to require the
commencement of any act contrary to law, and when there is any conflict
between any provision of this Agreement and any statute, law, ordinance, or
regulation, contrary to which the parties have no legal right to contract,
then the latter shall prevail; but in such an event, the provisions of this
Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within the legal requirements. Notwithstanding
anything contained in this Agreement to the contrary, this Agreement and the
terms and conditions contained herein shall be contingent upon receipt of all
requisite approvals of the applicable Gaming Authorities.
10.9. NO WAIVER. The several rights and remedies provided for
in this Agreement shall be construed as being cumulative, and no one of them
shall be deemed to be exclusive of the others or of any right or remedy
allowed by law. No waiver by the Company or Executive any failure of
Executive or the Company, respectively, to keep or perform any provision of
this Agreement shall be deemed to be a waiver of any preceding or succeeding
breach of the same or other provision.
10.10. MERGER. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with
respect to the employment of Executive by the Company.
10.11. NO REPRESENTATIONS. Each party to this Agreement
acknowledges that no representations, inducements, promises or other
agreements, oral or otherwise, have been made by any party, anyone acting on
behalf of any party, which are not embodied herein and that no other
agreement, statement or promise not contained in this Agreement shall be
valid or binding. Any addendum to or modification of this Agreement shall be
effective only if it is in writing and signed by the parties to be charged.
10.12. DRAFTING AMBIGUITIES. Each party to this Agreement has
been afforded an opportunity to have this Agreement reviewed by his or its
respective counsel. The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or of any amendments or exhibits to this
Agreement.
10.13. SURVIVAL. The terms and conditions of Article 6 and
Section 10.6 of this Agreement shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date hereinabove set forth.
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COMPANY: EXECUTIVE:
Hard Rock Hotel, Inc., a Nevada corporation
By:
Xxxxx X. Xxxxxx, President Xxxx Xxxxxxxx
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