Exhibit 99.4
POST EMPLOYMENT AGREEMENT
THIS POST EMPLOYMENT AGREEMENT ("AGREEMENT"), is made and entered into
on August 13, 2002, by and between MIKOHN GAMING CORPORATION, a Nevada
corporation ("MIKOHN"), and XXX XXXXXXX ("XXXXXXX").
W I T N E S S E T H:
WHEREAS, MIKOHN and XXXXXXX deem it to be in their respective best
interests to enter into an agreement providing for MIKOHN's termination of
XXXXXXX' employment pursuant to the terms herein stated.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, it is hereby agreed as follows:
1. Settlement Payment; Notes; Delivery of Shares. MIKOHN shall pay
to XXXXXXX a settlement payment (the "Settlement Payment") equal to $752,872.80.
The Settlement Payment shall be payable as follows: [a] $300,000 shall be paid
upon the execution of this Agreement by both parties and [b] the balance shall
be payable in thirty-six (36) monthly payments of $12,579.80 commencing
September 15, 2002. MIKOHN shall xxxx "Paid in Full" those two promissory notes
dated October 30, 1997 both in the principal amount of $113,740, one from
XXXXXXX and one from Xxxxxx xxx Xxxxxx assumed by XXXXXXX (the "Notes"), each
secured by 20,000 shares of MIKOHN common stock (the "Mikohn Shares") and shall
deliver the Notes and the Mikohn Shares to XXXXXXX.
2. Stock Options. The 215,000 stock options issued to XXXXXXX during
the term of his employment by MIKOHN shall be deemed fully vested and may be
exercised at any time prior to the expiration dates specified at the time the
options were issued.
3. Medical Benefits. MIKOHN agrees that XXXXXXX and his family will
be covered under MIKOHN's executive medical plan through August 13, 2005.
4. Covenant of Confidentiality. All documents, records, files,
manuals, forms, materials, supplies, computer programs, trade secrets, customer
lists, and other information which came into XXXXXXX' possession from time to
time during XXXXXXX' employment by MIKOHN, and/or any of MIKOHN's subsidiaries
or affiliates, shall be deemed to be confidential and proprietary to MIKOHN and
shall remain the sole and exclusive property of MIKOHN. XXXXXXX acknowledges
that all such confidential and proprietary information is confidential and
proprietary and not readily available to MIKOHN's business competitors. XXXXXXX
agrees that XXXXXXX will return to MIKOHN all such confidential and proprietary
items (including, but not limited to, company badge and keys) in XXXXXXX'
control or possession, and all copies thereof, and that XXXXXXX will not remove
any such items from the offices of MIKOHN. It is the intention of the parties
that the broadest possible protection be given to MIKOHN's trade secrets and
proprietary information and nothing in this Section shall in any way be
construed to narrow or limit the protection and remedies afforded by the Uniform
Trade Secrets Act.
5. Covenant of Non-Disclosure. Without the prior written approval of
MIKOHN, XXXXXXX shall keep confidential and not disclose or otherwise make use
of any of the confidential or proprietary information or trade secrets referred
to in this Agreement nor reveal the same to any third party whomsoever, except
as required by law.
6. Covenant of Non-Solicitation.
6.1 Employees. For a period of two (2) years from the date
hereof, XXXXXXX, either on XXXXXXX' own account or for any person, firm, company
or other entity, shall not solicit, interfere with or induce, or attempt to
induce, any employees of MIKOHN, or any of its subsidiaries or affiliates to
leave their employment or to breach their employment agreement, if any, with
MIKOHN.
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6.2 Customers. For a period of twelve (12) months from the
date hereof, XXXXXXX, either on XXXXXXX' own account or for any person, firm,
company or other entity, shall not solicit or induce, or attempt to induce, any
customer of MIKOHN to purchase any products or services which compete with any
products or services offered by MIKOHN at the time of the termination of the
employment relationship.
7. Covenant of Cooperation. Upon request by MIKOHN, XXXXXXX agrees
to cooperate with and assist MIKOHN in any matters with which XXXXXXX was
involved during XXXXXXX' employment by MIKOHN including, but not limited to, any
administrative or legal matters. MIKOHN shall reimburse XXXXXXX for reasonable
out-of-pocket expenses incurred in providing such assistance.
8. Covenant Against Competition. For a period of twelve (12) months
from the date hereof (the "Non-Compete Term"), XXXXXXX shall not directly or
indirectly engage in or become a partner, officer, principal, employee,
consultant, investor, creditor or stockholder of any business, proprietorship,
association, firm, corporation or any other business entity which is engaged or
proposes to engage or hereafter engages in any business which competes with the
business of MIKOHN and/or any of MIKOHN's subsidiaries or affiliates in any
geographic area in which MIKOHN conducts business at the time of the termination
or expiration of the employment relationship. Notwithstanding the foregoing,
nothing contained herein shall prevent (i) XXXXXXX from engaging in a business
or accepting employment with a business which does not sell to the gaming
industry or (ii) owning publicly traded debt or equity securities of any
company, whether or not said company competes with any business of Mikohn.
9. Non-Disparagement. Neither party shall make any remarks
disparaging the conduct or character of the other party or any of its
affiliates, officers or directors.
10. Release. Effective upon the execution of this Agreement, XXXXXXX
hereby releases and forever discharges MIKOHN, together with MIKOHN's past,
present and future officers, directors, shareholders, employees, agents,
representatives, subsidiaries, parent companies and affiliates, and their
successors, heirs and assigns, from any and all claims, demands, damages,
actions, causes of action, suits, debts, liabilities and obligations, liens,
costs and expenses of any nature, character and description, known or unknown,
accrued or not yet accrued, whether anticipated or unanticipated, arising from
or in any way related to XXXXXXX' employment by MIKOHN which XXXXXXX now holds,
or has any time heretofore owned or held, or may at any time hereafter own or
hold, by reason of any manner, cause or thing whatsoever existing as of the date
hereof or at any time prior hereto. The foregoing notwithstanding, this release
shall not apply to any claim XXXXXXX' may now or hereafter have for indemnity
from MIKOHN in respect to any claim asserted by third parties against XXXXXXX
arising from acts or omissions of XXXXXXX within the scope of his employment by
MIKOHN.
11. General Provisions.
11.1 Arbitration. Any controversy involving the construction,
application, enforceability or breach of any of the terms, provisions, or
conditions of this Agreement, including without limitation claims for breach of
contract, violation of public policy, breach of implied covenant, intentional
infliction of emotional distress or any other alleged claims which are not
settled by mutual agreement of the parties, shall be submitted to final and
binding arbitration in accordance with the rules of the American Arbitration
Association at Las Vegas, Nevada. The cost of arbitration shall be borne by the
losing party. In consideration of each party's agreement to submit to
arbitration any and all disputes that arise under this Agreement, each party
agrees that the arbitration provisions of this Agreement shall constitute
his/its exclusive remedy and each party expressly waives the right to pursue
redress of any kind in any other forum. The parties further agree that the
arbitrator acting hereunder shall not be empowered to add to, subtract from,
delete or in any other way modify the terms of this Agreement. Notwithstanding
the foregoing, any party shall have the limited right to seek equitable relief
in the form of a temporary restraining order or preliminary injunction in a
court of competent jurisdiction to protect itself from actual or threatened
irreparable injury resulting from an alleged breach of this Agreement pending a
final decision in arbitration.
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11.2 Authorization. MIKOHN and XXXXXXX each represent and
warrant to the other that he/she/it has the authority, power and right to
deliver, execute and fully perform the terms of this Agreement.
11.3 Entire Agreement. XXXXXXX understands and acknowledges
that this document constitutes the entire agreement between XXXXXXX and MIKOHN
with regard to XXXXXXX' employment by MIKOHN and XXXXXXX' post-employment
activities concerning MIKOHN. This Agreement supersedes any and all other
written and oral agreements between the parties with respect to the subject
matter hereof. Any and all prior agreements, promises, negotiations, or
representations, either written or oral, relating to the subject matter of this
Agreement not expressly set forth in this Agreement are of no force and effect.
This Agreement may be altered, amended, or modified only in writing signed by
all of the parties hereto. Any oral representations or modifications concerning
this instrument shall be of no force and effect.
11.4 Severability. If any term, provision, covenant, or
condition of this Agreement is held by a court or other tribunal of competent
jurisdiction to be invalid, void, or unenforceable, the remainder of such
provisions and all of the remaining provisions hereof shall remain in full force
and effect to the fullest extent permitted by law and shall in no way be
affected, impaired, or invalidated as a result of such decision.
11.5 Governing Law. Except to the extent that federal law may
preempt Nevada law, this Agreement and the rights and obligations hereunder
shall be governed, construed and enforced in accordance with the laws of the
State of Nevada.
11.6 Taxes. All compensation payable hereunder is gross and
shall be subject to such withholding taxes and other taxes as may be provided by
law. XXXXXXX shall be responsible for the payment of all taxes attributable to
the compensation provided by this Agreement except for those taxes required by
law to be paid or withheld by MIKOHN.
11.7 Assignment. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of MIKOHN. XXXXXXX may not sell,
transfer, assign, or pledge any of XXXXXXX' rights or interests pursuant to this
Agreement.
11.8 Waiver. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions, or prevent that party thereafter from
enforcing such provision or provisions and each and every other provision of
this Agreement.
11.9 Captions. Titles and headings to sections in this Agreement
are for the purpose of reference only and shall in no way limit, define, or
otherwise affect any provisions contained therein.
11.10 Breach - Right to Cure. A party shall be deemed in breach
of this Agreement only upon the failure to perform any obligation under this
Agreement after receipt of written notice of breach and failure to cure such
breach within ten (10) days thereafter; provided, however, such notice shall not
be required where a breach or threatened breach would cause irreparable harm to
the other party and such other party may immediately seek equitable relief in a
court of competent jurisdiction to enjoin such breach.
11.11 Acknowledgement. XXXXXXX acknowledges that he has been
given a reasonable period of time to study this Agreement before signing it.
XXXXXXX certifies that he has fully read, has received an explanation of, and
completely understands the terms, nature, and effect of this Agreement. XXXXXXX
further acknowledges that he is executing this Agreement freely, knowingly, and
voluntarily and that his execution of this Agreement is not the result of any
fraud, duress, mistake, or undue influence whatsoever. In executing this
Agreement, XXXXXXX does not rely on any inducements, promises, or
representations by MIKOHN other than the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have read, understood, and
voluntarily executed this Agreement as of the day and year first above written.
MIKOHN GAMING CORPORATION
/s/ Xxx Xxxxxxx By: /s/ Xxxxxxx X. XxXxxx, Xx
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XXX XXXXXXX
Title: Secretary
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