EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made and entered into as of the
17th day of October, 2000, by and between Xxxxxxxx X. Xxxx (the "EXECUTIVE")
and Anchor Gaming ("ANCHOR" or "EMPLOYER"), a Nevada corporation.
BACKGROUND
Employer is presently completing a restructuring of its ownership (the
"Transaction"), which will include changes in its executive management. Employer
acknowledges that, following the Transaction, continued access to the
experience, knowledge and expertise possessed by Executive will be critical to
Employer's success. Employer wishes to ensure that it will retain the services
of Executive for a period following the Transaction, and to memorialize the
terms of said employment relationship in writing,
This agreement supercedes all previous employment agreements by and between the
Company and the Executive. Termination under Executive's new employment
agreement will constitute termination under his previous option agreements.
Furthermore, a change in control under Executive's new employment agreement will
constitute a change of control under his previous option agreements.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, the parties agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions set forth in this
Agreement, Employer will employ Executive, and Executive hereby accepts such
employment with Employer.
2. DUTIES OF EXECUTIVE.
(a) Executive will serve in the capacity of Chief Financial Officer and
Treasurer of Anchor, as well as Secretary of the Board of Directors of Anchor
(the "BOARD"), and will be subject to supervision by the Chief Executive Officer
("CEO") and/or the Board. In such capacity, Executive will have all necessary
powers to discharge his duties and responsibilities, which will include
oversight of all financial matters in which Anchor and its affiliated and/or
subsidiaries are involved and consulting with other officers of Anchor, as
needed; together with such other duties as the Board and/or CEO may reasonably
assign, consistent with duties typically assigned to employees who hold
positions similar to that of Executive.
(b) During the term of this Agreement and except as provided below,
Executive will perform to the best of his abilities all duties assigned to him
hereunder, will devote substantially all of his primary business time, attention
and effort to the affairs of Anchor and will use his reasonable best efforts to
promote the interests of
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Anchor. Notwithstanding the foregoing or anything else in this Agreement,
Executive may engage in reasonable charitable, civic or community activities.
(c) Executive has obtained and possesses, or will obtain and possess, and
will maintain throughout the Term of this Agreement, all licenses, approvals,
permits, and authorization (the "LICENSES") necessary to perform Executive's
duties hereunder, including without limitation, any licenses required by any
agency of any state or county having jurisdiction to regulate gaming, liquor or
the activities undertaken by Employer. Any costs, attorneys' fees,
investigations fees or other expenses incurred in connection with obtaining such
Licenses shall be borne by Employer. Executive warrants that he is fully
eligible, under all standards and requirements, to obtain or possess such
licenses and that Executive will commit no acts during the term hereof that
would jeopardize or eliminate his ability to possess or maintain such Licenses.
(d) Executive agrees to submit to drug testing in accordance with the
Company policy, and to execute a consent form attached as EXHIBIT A.
3. TERM. The term of this Agreement (the "TERM") will commence as of
October 17, 2000 (the "EFFECTIVE DATE"), and will continue for a period of
4 years from the Effective Date, at which time this Agreement expires, unless
earlier terminated by either party in accordance with the terms and conditions
in this Agreement (the date on which Employee's employment with Employer
terminates is referred to as the "SEPARATION DATE").
4. COMPENSATION.
(a) SALARY. Commencing on the Effective Date and during the Term of this
Agreement, Employer will pay Executive a minimum base salary of
two-hundred-and-fifty-thousand dollars ($250,000.00, or $20,833.33 per month),
which will be payable in accordance with Employer's standard payroll practice,
but in any event, not less frequently than monthly. Such base salary will not
include any other benefits made available to Executive, or any contributions or
payments made on his behalf pursuant to any employee benefit plan or program of
Employer, including health, disability or life insurance plans or programs,
401(k) plans, cash bonus plans, stock option plans, retirement plans, severance
plans or any similar plans or programs of any nature that may be offered at any
time during the Term of this Agreement.
(b) BONUS COMPENSATION. In addition to the Salary set forth above,
Employer will pay Executive an annual bonus in an amount to be determined by,
and subject to the sole discretion of, the Board, up to a maximum of two-hundred
thousand dollars ($200,000.00), such bonus to be paid at a time and in a manner
consistent with payment of such bonuses to other of Employer's officers and/or
executives.
(c) EMPLOYEE BENEFITS. During the term of this Agreement, Employer will
provide Executive with all benefits made available from time to time by Employer
to
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employees and/or officers generally and to employees who hold positions similar
to that of Executive (including benefits granted to other officers and/or
directors of Employer), as per company policy. Executive's benefits will
include, without limit, participation in any and all Employer-sponsored medical,
dental and/or vision plans or programs, which will include coverage for
Executive's immediate family; disability insurance; life insurance payable to
Executive's designated beneficiary; participation in any and all
Employer-sponsored retirement plans and/or 401(k) plans; and paid vacation.
(d) EXPENSES. During the term of this Agreement, Executive be entitled to
reimbursement for all reasonable and necessary expenses incurred on behalf of
Employer, in accordance with the general policy of Employer.
5. RESTRICTED STOCK GRANT.
(a) GRANT. As additional consideration for the services provided by
Executive pursuant to this Agreement, Employer will confer upon Executive a
restricted stock grant in the amount of five-thousand (5,000) shares of common
stock of Employer, which will vest 20% on the date on which the Transaction
closes, and vest rateable over twelve successive calendar quarters in equal
increments. The restricted stock grant will be subject to the terms and
conditions of the Restricted Stock Agreement in substantially the form attached
as EXHIBIT B.
6. STOCK OPTIONS. As additional consideration for the services provided
by Executive pursuant to this Agreement, Employer will grant to Executive
options to purchase thirty-five thousand (35,000) shares of Employer's Common
Stock (the "OPTION GRANT") at an exercise price of seventy-one dollars and
eighty-seven and one-half cents ($71.875), such grant to be governed by the
existing Anchor Gaming 1995 Stock Option Plan and the 2000 Stock Incentive Plan,
which is to be presented to shareholders at Employer's next annual meeting. The
terms and conditions of this Option Grant shall be set forth in a separate Stock
Option Agreement, which is attached hereto as EXHIBIT B.
7. SEVERANCE.
(a) In the event that Executive's employment is terminated by Employer for
Cause (as defined below), Executive will receive no severance of any kind.
(b) In the event that Executive voluntarily terminates his employment with
Employer, he will receive no severance payment of any kind.
(c) In the event that Employer chooses to terminate Executive's employment
for other than Cause, Executive will receive a severance payment equal to one
year's salary, as set forth in SECTION 4(A), less any and all applicable
withholding.
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(d) "CAUSE" means that the Board reasonably finds that any one or more
of the following events has occurred: (i) performance by Participant of
illegal or fraudulent acts, criminal conduct, or willful misconduct relating
to the activities of the Company, including, without limit, violation by
Participant of any material gaming laws or regulations, which violation
materially and adversely affects the ability of Participant to perform his
duties to the Company or may subject the Company to liability; (ii)
conviction of, or nolo contendere plea by Participant to, any criminal acts
involving moral turpitude having a material adverse effect upon the Company,
including, without limitation, upon its profitability, reputation, or
goodwill; (iii) willful and material disregard of any reasonable directive(s)
from the Board that are not inconsistent with the terms of any contract with
the Company to which Participant is party, PROVIDED that the Board will
provide Participant with written notice that such event has occurred ("NOTICE
OF DISREGARD") and will further allow Participant 30 days in which to cure
such disregard, and PROVIDED FURTHER that the Board will provide an
opportunity for Participant to be heard if there is no cure within 30 days of
the Notice of Disregard; (iv) breach of fiduciary duty, PROVIDED that the
Board will provide Participant with written notice that such event has
occurred ("NOTICE OF BREACH OF FIDUCIARY DUTY") and will further allow
Participant 30 days in which to cure such breach of fiduciary duty, and
PROVIDED FURTHER that the Board will allow an opportunity for Participant to
be heard if there is no cure within 30 days of the Notice of Breach of
Fiduciary Duty; (v) material violation, not cured in a reasonable time after
notice from the Company, by Participant of any of the covenants and
agreements contained in any agreement with the Company to which Participant
is party; (vi) failure or inability of Participant to obtain or maintain
required gaming licenses or approvals.
(e) "CHANGE OF CONTROL" means the occurrence of any of the following
events, as a result of one transaction or a series of transactions: (i) any
"person" (as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act"), but excluding the
Company, its affiliates, and any qualified or non-qualified plan maintained
by the Company or its affiliates) becomes the "beneficial owner" (as defined
in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of the Anchor Gaming representing more than 50% of the combined
voting power of the Anchor Gaming's then outstanding securities; (ii)
individuals who constitute a majority of the Board of Directors of the
Company immediately prior to a contested election for positions on the Board
cease to constitute a majority as a result of such contested election; (iii)
Anchor Gaming is combined (by merger, share exchange, consolidation, or
otherwise) with another entity and as a result of such combination, less than
50% of the outstanding securities of the surviving or resulting entity are
owned in the aggregate by the former shareholders of Anchor Gaming; (iv) the
Company sells, leases, or otherwise transfers all or a majority of all of its
properties, assets or income or revenue generating capacity to another person
or entity; (v) a dissolution or liquidation of Anchor Gaming or; (vi) any
other transaction or series of transactions is consummated that results in a
required disclosure under Item 1 of Form 8-K or successor form.
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(f) TERMINATION FOLLOWING CHANGE OF CONTROL. In the event that Executive
is for any reason terminated or subjected to Constructive Termination (as
defined below), following a Change in Control, Executive will receive a
severance payment equal to one year's salary, as set forth in Section 4(a), less
any and all applicable withholding. A "CONSTRUCTIVE TERMINATION", for purposes
of this Agreement, is defined as: (i) a significant reduction in the duties or
responsibilities of Executive from those set forth in this Agreement; (ii) a
change in job title of Executive that reflects a reduction in duties,
responsibilities and/or stature; (iii) a change or reduction in Executive's
total remuneration (including salary, bonus, qualified retirement benefits,
welfare benefits, stock option benefits and any other employee benefits) from
that provided in this Agreement; (iv) a change in Executive's direct reporting
relationship such that Executive is no longer reporting directly to the CEO or
the Board; or (v) a change by Employer in the location of Executive's principal
place of employment, which moves the principal place of business more than 35
miles from the location specified in this Agreement.
8. PAYMENTS UPON TERMINATION; TAX TREATMENT. In the event that the total
compensation paid to Executive as severance in the event of a Change in Control,
taking into account all cash severance payments, shares of stock, accelerated
vesting of stock options, and bonuses, if any (such payments referred to, for
purposes of this Section 8, as the "Severance Payment"), is found to constitute
"an excess parachute payment" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "CODE), then Employer will pay to
Executive, in addition to the compensation paid as Severance Payment, an
additional amount (the "ADDITIONAL AMOUNT") which, after reduction for income
taxes and excise taxes on the additional amount, is sufficient to provide for
the payment of any excise tax that may be due by Executive on the Severance
Payment.
9. CONFIDENTIAL INFORMATION.
(a) DEFINITION OF "CONFIDENTIAL INFORMATION." As used herein, the term
"CONFIDENTIAL INFORMATION" means information of any kind, nature and
description disclosed to, discovered by or otherwise known by Employee as a
direct or indirect consequence of or through Executive's employment with
Employer that is not generally known within the industry or industries in
which Employer is or may become engaged, about Employer's business,
merchandise, client base, marketing procedures, processes and services,
including but not limited to, information relating to research, marketing,
development, inventions, product lines, design, purchasing, finances and
financial affairs, accounting, merchandising, selling, engineering,
employees, trade secrets, business practices, methods, acquisitions,
potential acquisitions, customer lists, customer contact lists, vendor lists,
pricing agreements, merchandise resources, supply resources, service
resources, system
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designs, procedures manuals, the prices it obtains or has obtained or at which
it sells or has sold its services or products, or the name of its personnel and
reports.
(b) NONDISCLOSURE. In order to perform his duties hereunder, Executive
will require access to trade secrets and proprietary information of Employer,
and Employer agrees to make such trade secrets and Confidential Information
available to Executive as necessary. Executive acknowledges that, in the course
of his employment with Employer pursuant to this Agreement, he will become
familiar with trade secrets and customer lists of, and other confidential
information concerning, Employer; that he will receive extraordinary and
specialized training in the operation of Employer's products and/or the nature
of Employer's services; that he will represent Employer and develop contacts and
relationships with other persons and entities, including but not limited to
customers, potential customers and employees of such entities; and that his
services will be of special, unique and extraordinary value to Employer.
Executive expressly covenants and agrees that he will not, during the term of
employment with Employer hereunder or at any time following the termination
thereof, without regard to the party terminating this Agreement or the reason
for termination, if any, directly or indirectly, reveal, divulge, disclose or
communicate to any Person ("Person" includes, but is not limited to, any
individual, corporation, institution, limited liability company, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, proprietorship or government or any agency or political
subdivision thereof), other than authorized officers, directors, and employees
of Employer, in any manner whatsoever, any Confidential Information of Employer
without the prior written consent of a duly authorized officer of Employer or
member of the Board.
(c) RETURN OF CONFIDENTIAL INFORMATION AND OTHER PROPERTY. Upon
termination of Executive's employment with Employer, Executive will surrender to
Employer all Confidential Information including, without limitation, all
samples, articles of manufacture, lists, charts, schedules, reports, financial
statements, books, and records, and all copies thereof, of Employer and all
other property belonging to Employer whatsoever.
10. COVENANT NOT TO COMPETE:
(a) CONSIDERATION FOR COVENANT. As consideration for his continued
employment with Employer and the grant of access by Employer to Confidential
Information, as provided in SECTION 9(b) of this Agreement, Executive will use
this information, training and good will solely for the benefit of Employer, and
further agrees to the Covenants set forth in this SECTION 10. Executive agrees
and acknowledges that the covenants set forth in this SECTION 10 are ancillary
to the agreements regarding Confidential Information contained in SECTION 9 of
this Agreement, and that these covenants set forth in this SECTION 10 are
reasonably necessary to protect Employer's interests in the Confidential
Information to which Executive is given access hereunder.
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(b) NON-COMPETITION. During the term of this Agreement and for a period of
one (1) year thereafter (the "NONCOMPETITION PERIOD"), Executive will not, in
the United States or in any foreign country in which Employer is then selling,
marketing, providing or soliciting to sell, market or provide its products or
services, directly or indirectly engage in, own or control an interest in
(except as to those investments held at the effective date of this agreement or
as a passive investor in publicly held companies, i.e., Executive and
Executive's relatives do not own of record, or beneficially, an aggregate of
more than two percent (2%) of any class of outstanding securities) or act as an
officer, director, or employee of, or consultant or adviser to, any firm,
corporation, institution or entity, directly or indirectly in competition with
or engaged in a business substantially similar to that of Employer, including
the development, manufacture, sale or marketing of products, services, devices,
instruments, methods or techniques (or any related services or activities)
similar to any products, services, devices, instruments, methods or techniques
which Employer is engaged in the development of, manufacture, selling, or
marketing, or has under consideration to do the same (whether or not such
products, devices, instruments, methods or techniques or the technology related
thereto were obtained from Executive), during the term of the Executive's
employment.
(c) NON-SOLICITATION. Executive further agrees that during the
Noncompetition Period he will not: (i) in any manner, directly or indirectly,
induce or attempt to induce any employee of Employer or any of its affiliates to
terminate or abandon his or her employment for any purpose whatsoever, or: (ii)
in connection with any business to which SECTION 9(b) applies, call on, solicit,
promote, merchandise, provide products or services to, or otherwise do business
with any customer of Employer whom Executive has solicited or otherwise dealt
with during the one-year period prior to the Separation Date; provided that,
such products or services are in competition with, or similar to, products or
service offered by Employer.
(d) CONSENT TO MODIFICATION. If, at any time, a court of competent
jurisdiction or an arbitrator holds that the restrictions stated in this
SECTION 10 are overly broad under then-existing circumstances, the parties
agree that the maximum period, scope or geographical area reasonable under
such circumstances will be substituted for the stated period, scope or area,
and that the court or arbitrator will be allowed to revise the restrictions
contained herein to cover the maximum period, scope and area permitted by law.
11. ENFORCEMENT OF COVENANTS. Executive has carefully read and considered the
provisions of SECTIONS 9 and 10 of this Agreement, and Executive agrees that the
restrictions contained therein (including, but not limited to, the time period
and geographic restriction) are fair and reasonable and that these provisions
are reasonably required for protection of Employer's interests. Executive
further agrees that a violation by Executive of any of the covenants contained
in SECTIONS 9 and 10 hereof will cause damage to Employer that will be
significant, material and difficult or impossible to adequately measure, and
that in the event of such a breach, notwithstanding any
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language or provision in SECTION 12, Employer will be entitled to seek and
obtain injunctive relief. Executive expressly acknowledges and agrees that the
respective covenants and agreements will be construed in such a manner as to be
enforceable under applicable laws if a more limited scope is determined by a
court of competent jurisdiction to be required.
12. NEGOTIATION, MEDIATION AND ARBITRATION.
(a) SUBJECT CLAIMS. The matters, claims, rights, and obligations subject
to these arbitration provisions include all rights, claims and obligations
arising out of or relating to this Agreement or to Executive's employment and/or
its termination, including, without limitation, any and all claims, rights or
causes of action which may ever arise or be asserted under any federal, state,
local or foreign statutory, regulatory or common law, and including, without
limitation, claims of discrimination on the basis of any protected status
(including, without limit, age, race, gender, religion and/or disability),
wrongful discharge or termination, breach of contract, tort (such as intentional
infliction of emotional distress, libel, slander, wrongful invasion of privacy
or personal injury), workers compensation or unemployment compensation. All of
the foregoing types of matters, claims, rights and obligations subject to these
arbitration provisions are herein called "SUBJECT CLAIMS." The parties agree and
acknowledge that an action by Employer to enforce any of the covenants set forth
in Sections 8 and/or 9 of this Agreement will not be a Subject Claim covered by
this SECTION 12.
(b) NEGOTIATION. The parties will attempt in good faith to resolve
promptly any controversy regarding a Subject Claim by negotiations between or
among the parties. If any party reaches the conclusion that the controversy or
dispute cannot be resolved by unassisted negotiations, such party may notify the
American Arbitration Association ("AAA"), 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 [telephone (000) 000-0000; fax (000) 000-0000], AAA will promptly
designate a mediator who is independent and impartial, and AAA's decision about
the identity of the mediator will be final and binding. The parties agree to
conduct at least eight (8) consecutive hours of mediated negotiations in Las
Vegas, Nevada, or other mutually convenient location to which the parties agree,
within thirty (30) days after the notice is sent.
(c) INITIATION OF BINDING ARBITRATION. If any controversy or dispute
regarding a Subject Claim is not resolved by negotiation or mediation within
thirty (30) days after the first notice to AAA is sent, then, upon notice by any
party to the other affected parties and to AAA ("ARBITRATION NOTICE"), said
controversy or dispute will be submitted to a sole arbitrator who is independent
and impartial, selected by AAA, for binding arbitration in Las Vegas, Nevada, or
any other mutually convenient location to which the parties agree, in accordance
with AAA's Commercial Arbitration Rules. The arbitration will be governed by the
United States Arbitration Act, 9 U.S.C. Sections 1-16 (or by the same principles
enunciated by such Act in the event it may not be technically applicable).
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(d) SELECTION OF ARBITRATOR. Promptly after the Arbitration Notice is
given, AAA will select five possible arbitrators, to whom AAA will give the
identities of the parties and the general nature of the controversy. If any of
those arbitrators disqualifies himself or declines to serve, AAA will continue
to designate additional potential arbitrators until the parties have five to
select from. After the panel of five potential arbitrators has been completed, a
two page summary of the background of each of the potential arbitrators will be
given to each of the parties, and the parties will have a period of 10 days
after receiving the summaries in which to attempt to agree upon the arbitrator
to conduct the arbitration. If the parties are unable to agree upon an
arbitrator, then one of the parties will notify AAA and the other party, and AAA
will notify each party that it has five days from the AAA notice to strike two
names from the list and advise AAA of the two names stricken. After expiration
of the strike period, if all but one candidate has been stricken, the remaining
one will be the arbitrator, but, if two or more have not been stricken, AAA will
select the arbitrator from one of those not stricken. The decision of AAA with
respect to the selection of the arbitrator will be final and binding in such
case.
(e) ARBITRATION HEARING. Within 20 days after the selection of the
arbitrator, the parties and their counsel will appear before the arbitrator at a
place and time designated by the arbitrator for the purpose of each party making
a one hour or less presentation and summary of the case. Thereafter, the
arbitrator will set dates and times for additional hearings in accordance with
the Rules until the proceeding is concluded. The desire and goal of the parties
is, and the arbitrator will be advised that his goal should be, to conduct and
conclude the arbitration proceeding as expeditiously as possible. If any party
or his counsel fails to appear at any hearing, the arbitrator will be entitled
to reach a decision based on the evidence that has been presented to him by the
parties who did appear.
(f) NO LITIGATION, DAMAGES LIMITATION. The parties agree that they will
faithfully observe this Agreement and will abide by and perform any award
rendered by the arbitrator. The award or judgment of the arbitrator will be
final and binding on all parties, and judgment upon the award or judgment of the
arbitrator may be entered and enforced by any court having jurisdiction. Unless
and only to the extent mandatory arbitration is validly prohibited or limited by
applicable statute or regulation, no litigation or other proceeding may ever be
instituted at any time in any court or before any administrative agency or body
for the purpose of adjudicating, interpreting or enforcing any of the rights,
duties, liabilities or obligations of the parties hereto or any rights, duties,
liabilities or obligations relating to any Subject Claim, whether or not covered
by the express terms of this Agreement, or for the purpose of adjudicating a
breach or determination of the validity of this Agreement, or for the purpose of
appealing any decision of an arbitrator, except a proceeding instituted (i) for
the purpose of having the award or judgment of an arbitrator entered and
enforced or (ii) to seek an injunction or restraining order (but not damages in
connection therewith) in circumstances where such relief is available. Unless
and only to the extent a limitation of damages is validly prohibited or limited
by applicable statute or regulation, no punitive, exemplary or
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consequential damages may ever be awarded by the arbitrator or anyone else, and
each of the parties hereby waives any and all rights to make, claim or recover
any such damages.
(g) BANKRUPTCY. If any party becomes the subject of a bankruptcy,
receivership or other similar proceeding under the laws of the United States of
America, any state or commonwealth or any other nation or political subdivision
thereof, then, to the extent permitted or not prohibited by applicable law, any
factual or substantive legal issues arising in or during the pendency of any
such proceeding will be subject to all of the foregoing mandatory mediation and
arbitration provisions and will be resolved in accordance therewith. The
Agreements contained herein have been given for valuable consideration, are
coupled with an interest and are not intended to be executory contracts. The
fees and expenses of the arbitrator will be shared equitably (as determined by
the arbitrator) by all parties engaged in the dispute or controversy.
13. DEATH OR DISABILITY. In the event that Executive dies or becomes unable, by
virtue of any physical or mental impairment, to perform the essential functions
of his position, with or without reasonable accommodation, for a period of 90
consecutive days or more ("Disability"), Employer will pay to Executive, or to
his estate, heirs and/or assigns, as appropriate, all salary owed to Executive
by Employer pursuant to Section 4 of this Agreement; any bonus owed to Executive
as of the date of said death or Disability, pursuant to Section 4 of this
Agreement; and a severance payment equal to six times Executive's monthly
salary.
14. NOTICE PROVISION. Any notice, demand or request required or permitted to be
given or made under this Agreement will be in writing and will be deemed given
or made when delivered in person, when sent by United States registered or
certified mail, or postage prepaid, or when telecopied to a party at its address
or telecopy number specified below:
If to Employer:
Anchor Gaming
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Telecopy number: (702) ___-____
If to Executive:
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Telecopy number: (___) ___-____
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The parties to this Agreement may change their addresses for notice by notifying
the other parties in the manner provided in this SECTION 14.
15. HEADINGS NON-BINDING. All section titles and captions in this Agreement are
for convenience only, will not be deemed part of this Agreement, and in no way
will define, limit, extend or describe the scope or intent of any provisions
hereof.
16. WORDS TO HAVE CONTEXTUAL MEANING. Whenever the context may require, any
pronoun used in this Agreement will include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
will include the plural and vice versa. Additionally, the words "and" and "or"
will be given their contextual meaning and not be interpreted as being solely
conjunctive or disjunctive, as the case may be.
17. EXECUTION OF AGREEMENT. The parties will execute all documents, provide all
information and take or refrain from taking all actions as may be reasonably
necessary or appropriate to achieve the purposes of this Agreement.
18. LIMITATION OF BENEFITS CLAUSE. None of the provisions of this Agreement
will be for the benefit of or enforceable by any creditors of the parties,
except as otherwise expressly provided herein.
19. NON-WAIVER PROVISION. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof will constitute
waiver of any such breach or any other covenant, duty, agreement or condition.
20. MULTIPLE ORIGINALS. This Agreement may be executed in counterparts, all of
which together will constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
21. CHOICE OF LAWS. THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEVADA, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW.
22. SEVERABILITY AND REFORMATION. If any provision of this Agreement is
declared or found to be illegal, unenforceable, or void, in whole or in part,
then the parties will be relieved of all obligations arising under such
provision, but only to the extent that it is illegal, unenforceable or void, it
being the intent and agreement of the parties that this Agreement will be deemed
amended by modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
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23. ENTIRE AGREEMENT. This Agreement, and the agreements in the forms of
exhibits attached hereto, constitute the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersede and
preempt any prior written or prior or contemporaneous oral understandings,
agreements or representations by or between the parties, written or oral, which
may have related in any manner to the subject matter hereof.
24. WRITTEN AMENDMENTS PROVISION. No supplement, modification or amendment of
this agreement or waiver of any provision of this Agreement will be binding
unless executed in writing by all parties to this Agreement. No waiver of any of
the provisions of this Agreement will be deemed or will constitute a waiver of
any other provision of this Agreement (regardless of whether similar), nor will
any such waiver constitute a continuing wavier unless otherwise expressly
provided.
25. WRITTEN CONSENT FOR ASSIGNMENT. No party may assign this Agreement or any
rights or benefits thereunder without the written consent of the other parties
to this Agreement.
26. CHOICE OF FORUM. Any action arising and initiated pursuant to this
Agreement must proceed in a state or federal district court in Xxxxx County,
Nevada. If such an action cannot proceed in a state or federal district court
due to jurisdictional limitations, then it will proceed in any state or county
court of competent jurisdiction in Xxxxx County, Nevada.
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EXECUTED as of the date first above written.
ANCHOR GAMING
By:
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and
EXECUTIVE
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