196347/2
Exhibit 10.77
AGREEMENT
THIS AGREEMENT, dated as of April 12, 1999 among PLAYERS
INTERNATIONAL, INC., a Nevada corporation ("PII"); PLAYERS
SERVICES, INC., a New Jersey corporation (the "Company"), jointly
and severally; and XXXXXXX X. XXXXX, XX., an individual (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company is a wholly-owned subsidiary of PII, a
publicly held Nevada corporation; and
WHEREAS, the Company and PII consider it essential to the
best interest of their respective stockholders to xxxxxx the
continuous employment of key management personnel;
WHEREAS, the board of directors of the Company and the Board
(as hereinafter defined) of PII recognize that, as is the case
with many publicly held corporations and their subsidiaries, the
possibility of a change in control may exist and that such
possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of
management personnel to the detriment of PII, the Company and
their respective stockholders;
WHEREAS, the board of directors of the Company and the Board
of PII have determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of
certain members of PII's and the Company's management, including
Executive, to their assigned duties without distraction in the
face of potentially disturbing circumstances arising from the
possibility of a "Change in Control" (as hereinafter defined) of
PII and/or the Company; and
WHEREAS, in order to induce Executive to remain in the
employ of the Company and in consideration of Executive's
undertakings set forth herein, PII and the Company agree that
Executive shall receive the severance benefits set forth in this
Agreement under the circumstances as described below.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable
consideration, PII, the Company and Executive (individually a
"Party" and together the "Parties") agree as follows:
1. Definitions.
(a) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(b) "Base Compensation" shall mean the Executive's
annual base compensation payable by PII or the Company.
(c) "Beneficial Owner" of any securities shall mean:
(i) that such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right
to acquire (whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or upon the exercise
of conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a Person shall not
be deemed the "Beneficial Owner" of securities tendered pursuant
to a tender or exchange offer made by such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for payment, purchase or exchange;
(ii) that such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the right
to vote or dispose of or has "beneficial ownership" of (as
determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), including without limitation
pursuant to any agreement, arrangement or understanding, whether
or not in writing; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of any security under this
subparagraph (ii) as a result of an oral or written agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding (A) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable provisions of the General Rules and Regulations under
the Exchange Act, and (B) is not then reportable by such Person
on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) where voting securities are beneficially
owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of
such Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (ii)
above) or disposing of any voting securities of PII or the
Company;
provided, however, that nothing in this Paragraph 1(c) shall
cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of any securities
acquired through such Person's participation in good faith in a
firm commitment underwriting until the expiration of forty days
after the date of such acquisition.
(d) "Board" shall mean the Board of Directors of PII.
(e) "Cause" shall mean (i) Executive is convicted of a
felony involving moral turpitude; (ii) Executive uses alcohol or
any unlawful controlled substance to an extent that it interferes
on a continuing and material basis with the performance of his or
her duties under the Agreement; (iii) Executive engages in the
willful, unauthorized disclosure of Confidential Information, as
defined in Paragraph l(g), concerning PII, the Company or any
Subsidiary, unless such disclosure was (A) believed in good faith
by Executive to be appropriate in the course of properly carrying
out his or her duties, or (B) required by an order of a court
having jurisdiction over the subject matter or a summons,
subpoena or order in the nature thereof of any legislative body
(including any committee thereof) or any governmental or
administrative agency; (iv) Executive, other than in the course
of properly carrying out his or her duties as assigned by PII or
the Company, performs services for any other corporation or
Person that competes with PII or the Company or any Subsidiary;
(v) Executive, in carrying out his or her duties as assigned by
PII or the Company, engages in willful neglect or willful
misconduct resulting, or reasonably likely to result, in either
case, in material economic harm to PII or the Company, unless
such act, or failure to act, resulted from Executive's reasonable
belief that such act or failure to act was in the best interests
of PII or the Company; or (vi) Executive is found disqualified or
not suitable to hold a casino key employee license or other such
license by a gaming authority in any jurisdiction where PII, the
Company or any Subsidiary operates a casino and Executive is
required to be found qualified, suitable or licensed, as the case
may be.
(f) "Change in Control" shall mean the occurrence of
any one of the following events:
(i) any Person (except the Xxxxxxx Group or its
Affiliates and Associates, Company or PII management as of the
Effective Date and their Affiliates and Associates or the Company
or PII, or any employee benefit plan of the Company or PII, or of
any Affiliate, any Person or entity organized, appointed or
established by PII or the Company for or pursuant to the terms of
any such employee benefit plan), together with all Affiliates and
Associates of such Person, shall become the Beneficial Owner in
the aggregate of 30% or more of the Voting Stock of PII or the
Company then outstanding; provided, however, that no "Change in
Control" shall be deemed to occur during any period in which any
such Person, and its Affiliates and Associates, are bound by the
terms of a standstill agreement under which such parties have
agreed not to acquire more than 30% of the Voting Stock then
outstanding or to solicit proxies;
(ii) consummation by PII or the Company of a
reorganization, merger or consolidation (a "Business
Combination"), in each case, with respect to which all or
substantially all of the individuals and entities who were the
respective Beneficial Owners of the Voting Stock of PII or the
Company outstanding immediately prior to such Business
Combination do not, following such Business Combination,
Beneficially Own, directly or indirectly, more than 50% of the
then outstanding shares of Voting Stock of the corporation
resulting from such Business Combination in substantially the
same proportion as their ownership immediately prior to such
Business Combination of the outstanding Voting Stock;
(iii) consummation of a complete liquidation
or dissolution of PII or the Company;
(iv) sale or other disposition of all or
substantially all of the assets of PII or the Company other than
to a corporation with respect to which, following such sale or
disposition, more than 50% of the then outstanding shares of
Voting Stock is then owned beneficially, directly or indirectly,
by all or substantially all of the individuals and entities who
were the Beneficial Owners, respectively, of the outstanding
Voting Stock immediately prior to such sale or disposition in
substantially the same proportion as their ownership of the
outstanding Voting Stock immediately prior to such sale or
disposition;
(v) individuals who, as of the beginning of any
twenty-four (24) month period, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a
director subsequent to the beginning of such period whose
election or nomination for election by PII's stockholders was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened election
contest relating to the election of members of the Board (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act); or
(vi) a "change of control" as defined in the form
of indenture governing any indebtedness of PII shall have
occurred.
(g) "Confidential Information" shall include, but not
be limited to, PII's or the Company's financial, real estate,
marketing and promotional plans and strategies. Confidential
Information does not include information that becomes available
to the public other than through a breach of the Agreement on the
part of Executive.
(h) "Disability" shall mean if, as a result of
Executive's incapacity due to physical or mental illness,
Executive shall have been absent from the full-time performance
of Executive's duties with PII or the Company for six consecutive
months and within thirty days after written notice of termination
is given Executive shall not have returned to the full-time
performance of Executive's duties.
(i) "Good Reason" shall mean, without Executive's
express written consent and without Cause, the occurrence within
twenty-four (24) months after a Change in Control, or within six
(6) months before a Change in Control, of any of the following:
(i) The assignment to Executive of any duties
inconsistent with Executive's status as an executive officer of
PII or the Company or a substantial adverse alteration in the
nature or status of Executive's responsibilities from those in
effect immediately prior to the date that is six months before
the Change in Control;
(ii) Executive's Base Compensation is decreased by
PII or the Company in other than an across-the-board salary
adjustment of similarly situated executives, or Executive's
benefits under any material employee benefit plan or program of
PII or the Company, or Executive's incentive or equity
opportunity under any material incentive or equity program of PII
or the Company is or are reduced, after taking into account the
discretion of the Board to determine the level at which Executive
participates in any performance compensation program, on a basis
not shared in common with other senior executives of PII or the
Company as a group; or
(iii) The failure of PII or the Company, as
applicable, to obtain a satisfactory agreement from any successor
to assume and agree to perform this Agreement, as contemplated in
Paragraph 6 hereof; provided that
(iv) Executive's termination of employment for
Good Reason must occur within 90 days after Executive learns of
the occurrence of the event constituting Good Reason and during
the term of the Agreement.
(j) "Person" shall mean any individual, firm,
corporation, partnership or other entity.
(k) "Subsidiary" shall mean any corporation in which
PII or the Company owns 50% or more of the Voting Stock or any
other venture in which it owns 50% or more of the equity.
(l) "Termination Upon a Change in Control" shall mean
that within twenty-four (24) months following a Change in
Control, or within six (6) months prior to a Change in Control,
and during the term of the Agreement, (i) PII or the Company
terminates Executive's employment without Cause or (ii) Executive
terminates Executive's employment for Good Reason, as described
in Subparagraph 3(a).
(m) "Voting Stock" shall mean capital stock of any
class or classes having general voting power under ordinary
circumstances, in the absence of contingencies, to elect the
directors of a corporation.
2. Term of Agreement. This Agreement shall commence on and as
of January 1, 1999 and shall continue in effect through December
31, 2000; provided that if a Change in Control occurs during the
term of this Agreement, this Agreement shall automatically
continue in effect for a period of twenty-four (24) months beyond
the month in which such Change in Control occurs.
3. Change in Control.
(a) Service Through Effective Date. Subject to the
provisions of subsection (b) hereof, if a Change in Control (as
defined in Subparagraph 1(f)) occurs, and Executive remains
employed by and provides Executive's customary service to PII and
the Company through and including the effective date of such
Change in Control, then Executive shall be entitled to the
benefits provided in Paragraph 4(a) hereof by reason of such
employment and services through such effective date. For
purposes of this Paragraph 3(a), if Executive terminates his or
her employment without Good Reason before the effective date of
the Change in Control, the Board may nevertheless, in its sole
discretion, for purposes of this Agreement determine to treat
such termination by the Executive as if it did not occur until
after the effective date of the Change in Control.
(b) Termination. If a Termination Upon a Change in
Control occurs, then Executive shall be entitled to the benefits
provided in Paragraph 4(b) hereof by reason of such Termination
Upon a Change in Control.
(c) Disability. Notwithstanding anything in this
Agreement to the contrary, if Executive's employment terminates
on account of Disability, Executive shall be entitled to receive
disability benefits under any disability program maintained by
PII and/or the Company that covers Executive, and Executive shall
not be considered to have terminated employment under this
Agreement and shall not receive benefits pursuant to Paragraph 4
hereof.
(d) Notice of Termination. Any purported termination
of Executive's employment by PII or the Company or by Executive
shall be communicated by written Notice of Termination to the
other party hereto in accordance with Paragraph 14 hereof. For
purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so
indicated.
4. Compensation Payable in the Event of Change in Control.
(a) Employment Through Effective Date. If a Change in
Control (as defined in Subparagraph 1(f)) occurs, and Executive
remains employed by and provides Executive's customary service to
PII and/or the Company through and including the effective date
of such Change in Control, then Executive shall be entitled to
receive promptly following the Change in Control, a lump-sum
payment equal to Executive's Base Compensation that would be due
him or her for a period of six (6) months following the effective
date of the Change in Control, determined at the rate of the
Executive's Base Compensation at the time of such Change in
Control.
(b) Termination. If a Termination Upon a Change in
Control occurs, Executive shall be entitled to receive promptly
following the later of Executive's termination of employment or
the Change in Control, the amount of any unpaid Base Compensation
earned or accrued through his or her date of termination and a
lump-sum payment equal to Executive's Base Compensation that
would be due him or her for a period of twelve (12) months
following termination of his or her employment, determined at the
rate of the Executive's Base Compensation at the time of his or
her termination; less any amounts already paid or to be paid to
Executive under Section 4(a), above.
(c) Other Obligations of PII and Company. Nothing
herein shall alter or impair, or constitute a waiver or accord
and satisfaction of, any other obligations and/or liabilities of
PII and/or the Company to Executive, and all compensation payable
to Executive under this Agreement shall be in addition to and not
in lieu of any bonuses, stock options or other payments or
compensation granted by or due from PII and/or the Company to
Executive.
(d) No Mitigation; No Offset. In the event of any
termination of Executive's employment under the Agreement, he or
she shall be under no obligation to seek other employment, and
there shall be no offset against amounts due him or her under the
Agreement on account of any remuneration attributable to any
subsequent employment that he or she may obtain.
(e) Nature of Payments. Any amounts due Executive
under the Agreement in the event of any termination of his or her
employment with PII or the Company are in the nature of severance
payments, or liquidated damages which contemplate both direct
damages and consequential damages that may be suffered as a
result of the termination of his or her employment, or both, and
are not in the nature of a penalty.
5. Intentionally Omitted.
6. Successors, Binding Agreement.
(a) Assumption. The Company and PII will require
any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of PII or the Company to expressly assume
and agree to perform this Agreement in the same manner and to the
same extent that the Company and PII would be required to perform
it if no such succession had taken place. Failure of the Company
and/or PII to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to compensation from PII
and the Company in the same amount and on the same terms as
Executive would be entitled to hereunder if there occurred a
Termination Upon a Change in Control with respect to the
Executive, except that for purposes of implementing the
foregoing, the date on which any such succession becomes
effective shall be deemed the date of termination. As used in
this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise. As used in this Agreement, "PII"
shall mean PII as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) Successors and Assigns. This Agreement shall
inure to the benefit of and be enforceable by Executive's
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devises and legatees. If
Executive should die after Executive's termination of employment
under circumstances entitling Executive to benefits hereunder and
while any amount would still be payable to Executive hereunder if
Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Executive's devisees, legatees or
other designee or, if there is no such designee, to Executive's
estate.
7. Representation. The Company, PII and Executive respectively
represent and warrant to each other that, subject to any approval
that may be necessary from any pertinent regulatory authority,
each respectively is fully authorized and empowered to enter into
the Agreement and that its, her or his entering into this
Agreement and the performance of its, her or his respective
obligations under the Agreement will not violate any agreement
between the Company, PII or Executive respectively and any other
person, firm or organization or any law or governmental
regulation.
8. Entire Agreement. The Agreement contains the entire
agreement between the parties concerning the subject matter
hereof and supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or
oral, between the parties with respect thereto.
9. Amendment or Waiver. The Agreement cannot be changed,
modified or amended without the consent in writing of all of
Executive, PII and the Company. No waiver by any Party at any
time of any breach by the other Party of any condition or
provision of the Agreement shall be deemed a waiver of a similar
or dissimilar condition or provision at the same or at any prior
or subsequent time. Any waiver must be in writing and signed by
Executive or an authorized officer of PII or the Company, as the
case may be.
10. Severability. In the event that any provision or portion of
the Agreement shall be determined to be invalid or unenforceable
for any reason, in whole or in part, the remaining provisions of
the Agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by law.
11. Survivorship. The respective rights and obligations of the
Parties hereunder shall survive any termination of the Agreement
to the extent necessary to the intended preservation of such
rights and obligations.
12. Governing Law. The Agreement shall be governed by and
construed and interpreted in accordance with the laws of the
State of New Jersey without reference to principles of conflict
of laws.
13. Settlement of Disputes. In the event of any dispute under
the provisions of this Agreement other than a dispute in which
the primary relief sought is an equitable remedy such as an
injunction, the parties shall be required to have the dispute,
controversy or claim settled by arbitration in the Atlantic City,
New Jersey in accordance with the National Rules for the
Resolution of Employment Disputes then in effect of the American
Arbitration Association, before a panel of three arbitrators, two
of whom shall be selected by the Company and Executive,
respectively, and the third of whom shall be selected by the
other two arbitrators. Any award entered by the arbitrators
shall be final, binding and nonappealable and judgment may be
entered thereon by either party in accordance with applicable law
in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable. The arbitrators
shall have no authority to modify any provision of this Agreement
or to award a remedy for a dispute involving this Agreement other
than a benefit specifically provided under or by virtue of the
Agreement. If Executive prevails on any material issue which is
the subject of such arbitration or lawsuit, PII and the Company
shall be responsible for all of the fees of the American
Arbitration Association and the arbitrators and any expenses
relating to the conduct of the arbitration and the Executive's
reasonable legal fees and expenses. Otherwise, each party shall
bear his, her or its own expenses relating to the conduct of the
arbitration (including attorneys' fees and expenses) and shall
share the fees of the American Arbitration Association.
14. Notices. Any notice given to either Party shall be in
writing and shall be deemed to have been given when delivered
personally or sent by certified or registered mail, postage
prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed
address as such Party may subsequently give notice of:
If to PII or the Company:
Players International, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Executive Officer
If to Executive:
Xxxxxxx X. Xxxxx, Xx.
000 Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
15. Heading. The heading of the paragraphs contained in the
Agreement are for convenience of reference only, do not
constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
16. Counterparts. The Agreement may be executed in two or more
counterparts.
IN WITNESS WHEREOF, the undersigned have executed the
Agreement as of the date first above.
COMPANY
Players Services, Inc.
_________________________
By: Xxxxxx X. Xxxxxxxx
Its: President
PII:
Players International, Inc.
_________________________
By: Xxxxxx X. Xxxxxxxx
Its: President
EXECUTIVE:
_________________________
Xxxxxxx X. Xxxxx, Xx.
