21
PH06/154834.1
Exhibit 10.67
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of March 31, 1997 between Players
International, Inc. (together with its successors or assigns as
permitted under this Agreement, the "Company"), and Xxxxxxx
Xxxxxxx, Xx. ("Executive").
W I T N E S S E T H:
The Company and Executive entered into an Employment
Agreement as of January 9, 1995 (the "Agreement"). The Agreement
was amended as of November 16, 1995, and was assigned from the
Company to Players Services, Inc. as of April 1, 1996. The
parties now desire to amend and restate the Agreement to reflect
Executive's current position, compensation and other arrangements
with the Company. Therefore, in consideration and other
arrangements with the Company. Therefore, in consideration of
the premises and mutual covenants contained herein and for other
good and valuable consideration, the Company and Executive
(individually a "Party" and together the "Parties") agree that
the Agreement is amended and restated as of March 31, 1997, to
read 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 compensation
provided for in Paragraph 4, subject to such increases as may be
approved by the Board from time to time.
(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, pursuant 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
or Scheduled 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 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 the
Company.
(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
duties under the Agreement; (iii) Executive engages in the
willful, unauthorized disclosure of Confidential Information, as
defined in Paragraph 10(c), concerning 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 duties under the Agreement, 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 duties under the
Agreement, perform services for any other corporation or person
that competes with the Company or any Subsidiary; (v) Executive,
in carrying out his duties under the Agreement, engages in
willful neglect or willful neglect or willful misconduct
resulting, or reasonably likely to result, in either case, in
material economic harm to 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 the
Company; (vi) Executive breaches a material term of this
Agreement; or (vii) 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 the
Company 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 management as of the Effective
Date and their Affiliates and Associates or the Company or any
employee benefit plan of the Company or of any Affiliate, any
Person or entity organized, appointed or established by 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 then outstanding; provided, however,
that no "Change of 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 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 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 the Company;
(iv) sale or other disposition of all or
substantially all of the assets of 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 month period, consitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majortiy of
the Board, provided that any individual becoming a director
subsequent to the beginning of such period whose election or
nomination for election by the Company 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 the Company shall have
occurred.
(g) "Constructive Termination Without Cause" shall
mean that:
(i) without Executive's prior written consent,
one or more of the following events occurs without Cause:
(A) following a Change of Control or within
six (6) months prior to any such Change of Control, Executive is
assigned any duties inconsistent with Executive's status as an
executive officer of the Company or a substantial adverse
alteration occurs in the nature and status of Executive's
responsibilities, authorities, duties or reporting relationships
from those in effect within six (6) months of a Change in Control
of the Company;
(B) following a Change of Control or within
six (6) months prior to any such Change of Control, Executive's
Base Compensation as provided for in Paragraph 4 is decreased by
the Company, or his benefits under any material employee benefit
plan or program of the Company or his incentive or equity
opportunity under any material incentive or equity program of 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 as provided
in Paragraph 4, on a basis not shared in common with other senior
executives of the Company as a group;
(C) the Company fails to obtain a written
agreement from any successor of the Company to assume and perform
the Agreement; or
(D) following the Change of Control, the
Company moves its principal executive offices more than 50 miles
from Atlantic City, New Jersey, or such other place where the
Company's principal executive offices are located immediately
prior to the Change of Control; and
(ii) within 90 days of learning of the occurrence
of such event, Executive terminates his employment with the
Company.
(h) "Disability" shall mean Executive's inability, for
a period of six consecutive months, to render substantially the
services provided for in Paragraph 3(a) by reason of permanent
mental or physical disability, whether resulting from illness,
accident or otherwise. In the case of a dispute as to whether
Executive has incurred a Disability. Executive agrees to submit
to a physical examination by two physicians, one selected by
Executive and the other by the Company and, in the event they do
not agree, to a physical examination by an additional physician
selected by the first two physicians whose decision shall be
final and binding on both parties.
(i) "Person" shall mean any individual, firm,
corporation, partnership or other entity.
(j) "Subsidiary" shall mean any corporation in which
the Company owns 50% or more of the Voting Stock or any other
venture in which if owns 50% or more of the equity.
(k) "Term of Employment" shall mean the period
specified in Paragraph 2.
(l) "Termination Upon a Change of Control" shall mean
that following a Change in Control (i) the Company terminates
Executive's employment without Cause or (ii) there is a
Constructive Termination Without Cause.
(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 Employment.
(a) The Company hereby agrees to continue to employ
Executive, and Executive hereby accepts such continuation of
employment, in the position and with the duties and
responsibilities as set forth in Paragraph 3 for the Term of
Employment, subject to the terms and conditions of the Agreement.
(b) The Term of Employment shall commence on the date
hereof and shall, unless sooner terminated or extended as
provided in Paragraph 9, terminate upon the close of business on
January 22, 1999.
3. Position, Duties and Authorities.
(a) During the Term of Employment, Executive shall be
employed as Vice President - Compliance and Legal Affairs of the
Company or such other more senior position as the Company may
determine in its sole discretion. Executive's duties,
responsibilities and authorities shall consist of those regularly
rendered by a Vice President - Compliance and Legal Affairs or
such other duties appropriate to any senior position within the
Company in which Executive may serve during the Term of
Employment, as the case may be.
(b) Anything herein to the contrary notwithstanding,
nothing shall preclude Executive from engaging in charitable,
community and business affairs, managing his personal investments
and serving as a member of boards of directors so long as such
activities do not materially interfere with his carrying out his
duties and responsibilities under the Agreement.
(c) During the term of Employment, Executive shall
perform his services from an office in Atlantic City, New Jersey
and at such other offices of the Company as may be required by
his duties; provided, however, that Executive shall not be
required to move his home from Atlantic County, New Jersey.
4. Base Compensation. During the Term of Employment,
Executive shall be paid by the Company or any of its Affiliates
Base Compensation payable no less frequently than in equal semi-
monthly installments at an annualized rate of no less than
$150,000 per annum for the period commencing January 23, 1997
through January 22, 1999. The Company shall be entitled to make
proper withholdings from Executive's Base Compensation (and all
other payments of compensation under this Agreement) as required
by law.
5. Performance Bonus. The Company may, but is not
required, to adopt a bonus or short term performance compensation
program for senior executives. In the event that such a program
is adopted, Executive shall participate in such program but the
Board shall determine Executive's level of participation for each
year of the Term of Employment in its sole discretion; provided,
however, that the Board shall have the discretion to grant
additional individual bonus compensation in excess of the
foregoing general performance bonus program to Executive or any
other executive or the Company in recognition of performance
achievements particular to any of them.
6. Stock Options and Stock Grant.
(a) The Company may, but is not required, to grant to
Executive shares of Voting Stock as well as stock options to
purchase of Voting Stock subject to restrictions determined by
the Board, in either event in the sole discretion of the Board,
for any year during the Term of Employment, which shall be made
pursuant to an equity compensation plan approved by the Board
generally for senior level executives of the Company; provided,
however, that the Board shall have the discretion to grant
additional options or restricted shares to Executive or any other
executive or the Company in recognition of performance
achievements particular to any of them. The Company shall use
its best effort to maintain any and all registration statements
of any shares subject to option or issued pursuant to the
exercise of a stock appreciation right to permit such shares to
be freely tradeable upon exercise.
(b) The Company has granted to Executive options to
purchase shares of the Company as set forth on Exhibit "A."
7. Employment Benefit Program. Executive shall be
entitled to receive such benefits as are generally available to
all other executive employees of the Company. Executive shall
also be entitled to receive all perquisites available to other
executive employees of the Company. Executive, his spouse and
all minor children shall be entitled, at the Company's sole cost
and expense, to medical, surgical, hospitalization, dental and
visual coverage (which may include any such coverage furnished
Executive under any insured program provided by the Company to
its employees) providing Executive, his spouse and minor children
with such coverage for such expenses as is provided to other
executive employees of Employer. Without limiting foregoing, in
the event that during the Term of Employment, the Company
terminates the long term care and disability coverage that is
provided by the Company terminates the long term care and
disability coverage that is provided by the Company to executive
employees of the Company as of the effective date of this
Agreement, the Company shall pay directly to an insurer
designated by Executive a maximum amount of $175.00 per month for
comparable long term care and disability coverage.
8. Business Expenses Reimbursement. During the Term of
Employment, Executive shall be entitled to receive from the
Company, upon submission of adequate documentation, reimbursement
for all reasonable, out-of-pocket ordinary and necessary business
expenses incurred by him in performing services under the
Agreement. Such expenses may include reasonable continuing
education, travel expenses, entertainment and promotional
expenses, dues and expenses of membership of civic groups,
professional societies and fraternal organizations including, but
not limited to, all costs to Executive to maintain Executive's
license in good standing to practice law in the State of New
Jersey. In addition, any expenses incurred in connection with
the qualification as a licensee in any jurisdiction shall be paid
by the Company.
9. Termination of Employment.
(a) Termination Due to Death or Disability. In the
event of the termination of Executive's employment under the
Agreement due to his death or Disability, Executive or his legal
representatives as the case may be, shall be entitled to:
(i) in the case of Disability, the disability
benefit available under the only to the extent of the insurance
maintained as provided in Paragraph 7; and
(ii) any other compensation and benefits to which
he or his legal representatives or beneficiaries may be entitled
under applicable plans, program and agreements of the Company,
including, without limitation, life insurance benefits as may be
provided in Paragraph 7.
(b) Termination by the Company for Cause. The Company
may terminate Executive for Cause. The preceding sentence
notwithstanding, Executive's employment shall not be deemed to
have been terminated for Cause unless the Company has given or
delivered to Executive at or prior to any such for Cause
termination reasonable notice setting forth the reasons for the
Company's termination of Executive's employment for Cause. In
the event Executive's employment is terminated by the Company for
Cause, Executive shall be entitled to:
(i) unpaid Base Compensation earned or accrued at
the rate in effect at the time of his termination through the
date of termination of his employment;
(ii) reimbursement for expense incurred but not
yet reimbursed by the Company pursuant to Paragraph 8; and
(iii) any other compensation and benefits to
which he may be entitled under applicable plans, programs and
agreements of the Company.
Executive's entitlement to the foregoing shall be without
prejudice to the right of the Company for any damages to which it
may be entitled as a result of such Cause.
(c) Termination without Cause: Constructive
Termination Without Cause; Expiration of the Agreement. In the
event Executive's employment is terminated by the Company without
Cause (which shall not include a termination pursuant to
Paragraph 9(a) or 9(d)), or in the event of a Constructive
Termination Without Cause, Executive shall be entitled to
receive;
(i) unpaid Base Compensation earned or accrued
through his date of termination and continued Base Compensation
payments, at the rate in effect at the time of his termination,
through the end of the Term of Employment in a lump-sum payment
promptly following termination of Executive's employment;
(ii) any performance or special incentive bonus
earned but not yet paid;
(iii) reimbursement for expenses incurred but
not yet reimbursed by the Company pursuant to Paragraph 8; and
(iv) any other compensation and benefits to which
he may be entitled under applicable plans, programs and
agreements of the Company.
(d) Termination Upon a Change in Control. In the
event a Termination Upon a Change in Control occurs within two
(2) years following any Change of Control, or in the event
Executive is terminated under subparagraph (c) within six months
prior to the occurrence of a Change in Control, Executive shall
be entitled to receive (taking into account any benefits provided
under subparagraph (c)), promptly following the later of his
termination of employment or the Change of Control:
(i) unpaid Base Compensation earned or accrued
through his date of termination and a lump-sum payment equal to
the then present value (using a discount rate per annum
determined by reference to the discount rate then published by
the Pension Benefit Guaranty Corporation for determining the
value of immediate annuities (the "Present Value")) of
Executive's Base Compensation that would be due him for a period
of 36 months following termination of his employment, determined
on the basis of the average of the Base Compensation paid to
Executive for the 36 months preceding his termination;
(ii) a lump-sum payment equal to the Present Value
of the aggregate performance bonus amounts he received, if any,
for the period of 36 months preceding his termination;
(iii) any performance or special incentive
bonus earned but not yet paid;
(iv) reimbursement for expenses incurred but not
yet reimbursed by the Company pursuant to Paragraph 8;
(v) the immediate vesting of all stock options
previously granted to Executive, notwithstanding the terms of any
such grant to the contrary, with the ability to exercise any such
options for 12 months following the date of termination but in no
event after the expiration of the stated option term; and
(vi) any other compensation and benefits to which
he may be entitled under applicable plans, programs and
agreements of the Company and the continuation of Executive's
participation in all Employee Benefit Programs (as defined below)
during the period for which Executive is to receive payments
under clause (i) above (irrespective of the fact that such
payments are paid in a lump sum); provided, however, that in the
event the Company is precluded from providing coverage under any
such program by applicable law or regulation it may choose to
provide Executive with a payment equal to the cost of such
coverage without regard to tax effect. "Employee Benefit
Programs" shall mean those employee welfare and retirement
benefit plans and programs of the Company in which Executive
participates immediately before Executive's termination of
employment; provided, however, that the Company shall not be
prohibited from amending or terminating any Employee Benefit
Program as long as Executive continues to receive comparable
levels of coverage in the aggregate during the payment period.
Notwithstanding the foregoing, in the event that it shall be
determined that any payment or distribution by the Company to or
for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would constitute an "excess
parachute payment" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), and that
it would be economically advantageous to the Company to reduce
the payment to avoid or reduce the limitation of the Company's
federal income tax deduction under Section 280G of the Code, the
aggregate present value of amounts payable or distributable to or
for the benefit of Executive pursuant to this Agreement (such
payments or distributions pursuant to this Agreement are
hereinafter referred to as "Agreement Payments") shall be reduced
(but not below zero) to the Reduced Amount. The "Reduced Amount"
shall be an amount expressed in present value which maximizes the
aggregate present value of Agreement Payments without causing any
Payment to be subject to the limitation of deduction under
Section 280G of the Code. For purposes of this subparagraph (d),
"present value" shall be determined in accordance with Section
280G(d)(4) of the Code. All determinations to be made under this
Paragraph 9(d) shall be made by the Company's independent public
accountant immediately prior to the Change of Control (the
"Accounting Firm"), which firm shall provide its determinations
and any supporting calculations both the Company and Executive
within ten days of the termination date. Any such determination
by the Accounting Firm shall be binding upon the Company and
Executive. Executive shall in his sole discretion determine
which and how much of the Agreement Payments shall be eliminated
or reduced consistent with the requirements of this Paragraph
9(d). Within five days after Executive's determination, the
Company shall pay (or cause to be paid) or distribute (or cause
to be distributed) to or for the benefit of Executive such
amounts as are then due to Executive under this Agreement. All
of the fees and expenses of the Accounting Firm in performing the
determinations referred to above shall be borne solely by the
Company. The Company agrees to indemnify and hold harmless the
Accounting Firm of and from any and all claims, damages and
expenses resulting from or relating to its determinations
pursuant to this Paragraph, except for claims, damages or
expenses resulting from the gross negligence or willful
misconduct of the Accounting Firm.
The Paragraph 9(d) shall survive any termination of this
Agreement other than a termination of this Agreement by reason of
Executive's termination of employment for Cause.
(e) No Mitigation; No Offset. In the event of any
termination of Executive's employment under the Agreement, he
shall be under no obligation to seek other employment, and there
shall be no offset against amounts due him under the Agreement on
account of any remuneration attributable to any subsequent
employment that he may obtain.
(f) Nature of Payments. Any amounts due Executive
under the Agreement in the event of any termination of his
employment with 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 employment, or both, and are not
in the nature of a penalty.
10. Covenant Not to Compete; Covenants to Project
Confidential Information and Not Solicit Employees; Return of
Records; Inventions and Improvements.
(a) If Executive voluntarily terminates his
employments with the Company (except in cases where Executive
voluntarily terminates his employment with the Company after the
nature expiration of the Term of Employment because of the
Company's failure to renew this Agreement on at least as
favorable terms to Executive as provided to Executive under this
Agreement), or if the Company terminates the employment of
Executive for Cause, Executive shall not for a one-year period
engage in competition with the Company within the meaning of
Paragraph 10(b). If Executive is in breach of this Paragraph
10(a), since a remedy at law will not suffice to remedy the
damage suffered thereby, the Company shall be entitled to
specific performance.
(b) Executive shall be engaging in competition with
the Company if he is engaged in the gaming business within 100
miles of any location in which the Company is engaging in the
gaming business at the time of the termination of Executive's
employment, whether as an employee, consultant, partner,
principal, agent, representative or stockholder or in any other
corporate or representative capacity, so long as the Company is
engaged in the gaming business in the location in question. The
Company agrees that it is not engaged in the gaming business in
either Atlantic City, New Jersey or Las Vegas, Nevada on the date
of this Agreement. The foregoing restrictions shall not be
construed to prohibit the ownership by Executive of less than one
percent (1%) of any class of securities of any corporation which
is engaged in any of the foregoing business having a class of
securities registered pursuant to the Exchange Act, provided that
such ownership represents a passive investment and that neither
Executive nor any group of persons including Executive in any
way, either directly or indirectly, manages or exercises control
of any such corporation, guarantees any of its financial
obligations, otherwise takes any part in its business, other than
exercising his rights as a shareholder, or seeks to do any of the
foregoing.
(c) Executive shall not, during the Term of Employment
or thereafter, without the prior written consent of the Company,
divulge, publish or otherwise disclose to any other person any
Confidential Information regarding the Company or any Subsidiary
except in the course of carrying out his responsibilities on
behalf of the Company (e.g., providing information to the
Company's attorneys, accountants, bankers, etc.) or if required
to do so pursuant to the 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. For this
purpose, Confidential Information shall include, but not be
limited to, the Company's financial, real estate, marketing and
promotional plans and strategies, and non-public personal
financial information about the Company's executives.
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.
(d) Executive shall not during the Term of Employment
or thereafter, without the prior written consent of a Subject
Party, as hereafter defined, divulge, publish, or otherwise
disclose to any person any Confidential Information regarding a
Subject Party except in the course of carrying out
responsibilities on behalf of Subject Party (e.g., providing
information to advisors) or if required to do so under
circumstances as described in Paragraph 10(c) in connection with
disclosure of Confidential Information about the Company. For
this purpose, Confidential Information about a Subject Party
shall include non-public financial information about a Subject
Party shall include non-public financial information about a
Subject Party including non-party information regarding his
business and investment activities. Confidential Information
does not include information that becomes available to the public
other than through a breach of the Agreement on the party of
Executive. Executive further agrees he will not during the Term
of Employment or thereafter publish any book or article about, or
disclose in any public forum, his personal experiences with, or
other personal information about, a Subject Party. Affiliates of
a Subject Party or their respective heirs, successors and assigns
are expressly intended as third party beneficiaries of the
provisions of this Paragraph 10(d) and shall be entitled to
enforce the provision hereof independent of the Company by
injunction or otherwise and to any damages suffered by reason of
any breach of this Paragraph 10(d). For purposes hereof, Subject
Party shall be Mr. Xxxx Xxxxxxx.
(e) For a period of one (1) year after the termination
of Executive's employment for any reason whatsoever, Executive
will not solicit or endeavor to entice away from the Company
(whether for his own business or on behalf of another person or
entity) any of the Company's employees who have had access to
Confidential Information to work for a person or business
engaging in competition with the Company within the meaning of
Paragraph 10(b). This Paragraph shall not prohibit any employer
of Executive from employing any employee of Players, so long as
Employee did not, directly or indirectly, solicit or endeavor to
entice away from the Company any employee of the Company.
(f) Upon the termination of Executive's employment (or
at any other time so requested), Executive agrees to promptly
deliver to the Company all of the Company's assets, files,
documents, business records, notes, designs, data, manuals,
equipment, keys, credit cards, lists of customers, and any other
materials of any nature which are in Executive's possession or
control, including materials which contain Confidential
Information, and any copies of the foregoing.
(g) Executive shall treat as and for the Company's
sole benefit, and shall fully and promptly disclose and assign to
the Company without additional compensation, all ideas, writings,
discoveries, techniques, methods, developments, inventions and
improvements which may be made, conceived or reduced to practice
by Executive during the Term of Employment and every other item
of knowledge relating to any of the business affairs of the
Company. Executive, without cost or expense to Executive, shall
execute all documents and cooperate in all other acts reasonably
required of Executive to protect the rights to the ideas,
discoveries, inventions and improvements referred to herein and
shall surrender to the Company upon termination of Executive's
employment all documents, agreements and other writings produced
by or coming into Executive's possession.
This Paragraph 10 and Paragraph 11 below shall survive any
termination of this Agreement.
11. Equitable Relief.
(a) Executive acknowledges and agrees that the
restrictions contained in Paragraph 10 are reasonable and
necessary to protect and preserve the legitimate interests,
properties, goodwill and business of the Company, that the
Company would not have entered into this Agreement in the absence
of such restrictions and that irreparable injury will be suffered
by the Company should Executive breach any of the provisions of
that Paragraph. Executive represents and acknowledges that (i)
he has been advised by the Company to consult his own legal
counsel in respect of this Agreement, and (ii) that he has had
full opportunity, prior to execution of this Agreement, to review
thoroughly this Agreement with his counsel.
(b) Executive further acknowledges and agrees that a
breach of any of the restrictions in Paragraph 10 cannot be
adequately compensated by monetary damages. Executive agrees
that the Company shall be entitled to preliminary and permanent
injunctive relief, without the necessity of proving actual
damages, as well as an equitable accounting of all earnings,
profits and other benefits arising from any violation of
Paragraph 10, which rights shall be cumulative and in addition to
any other rights or remedies to which the Company may be
entitled. In the event that any of the provisions of this
Paragraph should ever be adjudicated to exceed the time,
geographic, service, or other limitations permitted by applicable
law in any jurisdiction, it is the intention of the parties that
the provision shall be amended to the extent of the maximum time,
geographic, service, or other limitations permitted by applicable
law, that such amendment shall apply only within the jurisdiction
of the court that made such adjudication and that the provision
otherwise be enforced to the maximum extend permitted by law.
(c) Executive irrevocably and unconditionally (i)
agrees that any suit, action or other legal proceeding arising
out of Paragraph 10, including without limitation, any action
commenced by the Company for preliminary and permanent injunctive
relief and other equitable relief, may be brought in the United
States District Court for the District of New Jersey, or if such
court does not have jurisdiction or will not accept jurisdiction,
in any court of general jurisdiction in Atlantic City, New
Jersey, (ii) consents to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding, and (iii)
waives any objection which Executive may have to the laying of
venue of any such suit, action or proceeding in any such court.
Executive also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a
manner permitted by the notice provisions of Paragraph 20.
12. Assignability: Binding Nature. This Agreement shall
be binding upon and inure to the benefit of the Parties (and in
the case of Paragraph 10(d), to the benefit of the Subject party)
and their respective successors, heirs and assigns. No rights or
obligations of the Company under the Agreement may be assigned or
transferred by Executive or the Company except that (a) such
rights or obligations of the Company may be assigned or
transferred pursuant to a merger or consolidation in which the
Company is not the continuing entity, or the sale or liquidation
of all or substantially all of the assets of the Company,
provided that the assignee or transferee is the successor to all
or substantially all of the assets of the Company and such
assignee or transferee assumes the liabilities, obligations and
duties of the Company, as contained in the Agreement, either
contractually or as a matter of law, and (b) such obligations of
the Company may be transferred by Executive by will or pursuant
to the law of descent or distribution or pursuant to any express
transfer provisions in an instrument granting Executive stock
option. The Company shall take all reasonable legal action
necessary to effect such assignment and assumption of the
Company's liabilities, obligations and duties under the Agreement
in circumstances clause (a) of the preceding sentence.
13. Representation. The Company 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 or his entering into this Agreement
and the performance of its or his respective obligations under
the Agreement will not violate any agreement between the Company
or Executive respectively and any other person, firm or
organization or any law or governmental regulation.
14. Entire Agreement. The Agreement contains the entire
agreement between the parties concerning the subject matter
hereof and supersedes all prior agreements, understandings,
discussion, negotiations and undertakings, whether written or
oral, between the parties with respect thereto.
15. Amendment or Waiver. The Agreement cannot be changed,
modified or amended without the consent in writing of both
Executive and the Company. No waiver by either 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 the Company, as the case may be.
16. 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.
17. 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.
18. 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.
19. 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 of 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 Employee,
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 on any material issue which is the subject of such
arbitration or lawsuit, 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 Employee's reasonable legal fees and
expenses. Otherwise, each party shall bear his 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.
20. Notices. Any notice given to either Party shall be in
writing and, except as provided in the second sentence of
Paragraph 9(b), 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
concerning at the address indicated below or to such changed
address as such Party may subsequently give notice of:
If to the Company:
Players International, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Executive Officer
If to Executive:
Xxxxxxx Xxxxxxx, Xx.
0000X Xxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
21. 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.
22. 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.
ATTEST: Players International, Inc.
____________________
By: Xxxxxx X. Xxxxxxxx
Its: Chief Executive Officer
Xxxxxxx Xxxxxxx, Xx.
