Exhibit 10.60
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("AGREEMENT"), is made and entered into as of
August 31, 1998 by and between MIKOHN GAMING CORPORATION, a Nevada corporation
("MIKOHN"), and XXXX XXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, MIKOHN and Employee deem it to be in their respective best
interests to enter into an agreement providing for MIKOHN's employment of
Employee 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 Term. MIKOHN hereby employs and Employee hereby accepts
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employment with MIKOHN for a period of three (3) years beginning on October 15,
1998 ("Initial Term"). Unless MIKOHN or Employee gives written notice that this
Agreement shall be allowed to expire and the employment relationship thereby
terminated at least thirty (30) days prior to the expiration of the Initial
Term, this Agreement shall continue in effect from month to month after the
expiration of the Initial Term and shall be terminable by either party upon
thirty (30) days' written notice. (The Initial Term and the period during which
this Agreement may remain in effect thereafter are collectively referred to
herein as the "Term".)
_.2 Duties of Employee. Employee's position with MIKOHN will be
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Director - Gaming Products. Employee shall do and perform all services, acts, or
things reasonably necessary or advisable to accomplish the objectives and
complete the tasks assigned to Employee by senior management of MIKOHN. MIKOHN
may assign Employee to another position commensurate with Employee's training
and experience so long as the compensation paid to Employee is equal to or
greater than the compensation provided in this Agreement. MIKOHN shall provide
Employee with a computer and other office equipment as specified by Employee and
deemed necessary by MIKOHN for Employee's use in performing his duties
hereunder. All such equipment shall remain the property of MIKOHN and shall be
returned to MIKOHN in good order and repair upon the termination of this
Agreement for any reason.
_.3 Devotion of Time to MIKOHN's Business. Employee shall be a
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full-time employee of MIKOHN and shall devote such substantial and sufficient
amounts of Employee's productive time, ability, and attention to the business of
MIKOHN during the Term of this Agreement as may be reasonable and necessary to
accomplish the objectives and complete the tasks assigned to Employee. Prior
written consent of MIKOHN shall be required before Employee shall undertake to
perform any outside services of a business, commercial, or professional nature,
whether for compensation or otherwise. Written consent shall not be required as
to Employee's reasonable participation in educational and professional
activities related to the maintenance of Employee's qualifications and stature
in Employee's profession. Any other provision in this Agreement to the contrary
notwithstanding, Employee shall be permitted [1] to lecture, give talks and
symposia, publish books, technical papers and other
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writings during the term of this Agreement and shall be permitted to retain all
royalties and other compensation earned as a result thereof and [2] Employee
shall be permitted to provide consulting services to third parties approved by
MIKOHN and shall be permitted to retain 50% of any consulting fees earned as a
result thereof with the balance of such fees going to MIKOHN. During the term
of this Agreement, Employee shall be based in Las Vegas, Nevada or at some
other location mutually agreed by the parties.
_.4 Uniqueness of Services. Employee hereby acknowledges that the
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services to be performed by Employee's under the terms of this Agreement are of
a special and unique value. Accordingly, the obligations of Employee under this
Agreement are non-assignable.
_.5 Compensation of Employee.
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_.5.1 Base Annual Salary. Subject to other specific
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provisions in this Agreement, as compensation for services hereunder, Employee
shall receive a Base Annual Salary at the rate of not less than $150,000 per
annum.
_.5.2 Minimum Advance Royalties. In addition to all other
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compensation payable under this Agreement, MIKOHN shall pay to Employee an
annual sum ("Advance Royalties") equal to $30,000 plus any royalties paid by
Employee to Xxx Xxxxxx for Wild Aruba Stud and "knowledge-based" inventions in
which Xxx Xxxxxx is considered a co-inventor. Advance Royalties shall be payable
bi-weekly and shall be credited against any past or future royalties owed under
Section 5.5 below. All Advance Royalties payable hereunder shall be
non-refundable. The foregoing notwithstanding, MIKOHN shall not receive credit
for any Advance Royalties paid against future royalties owed in excess of
$90,000.
_.5.3 Annual Review. MIKOHN agrees to review the salary of
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Employee annually during the term of this Agreement. MIKOHN, in its sole
discretion, may increase Employee's salary dependent upon various factors which
include without limitation Employee's performance, the compensation paid to
similarly situated employees of businesses similar in type and size to MIKOHN,
the financial condition of MIKOHN, and the economic and market conditions to
which MIKOHN is or may be subject.
_.5.4 Stock Options. MIKOHN grant's to Employee options to
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purchase shares of MIKOHN Common Stock (the "Option") under MIKOHN's Stock
Option Plan ("Plan"). The Option shall be in the form of MIKOHN's standard Stock
Option Agreement and subject to the terms and conditions thereof and of the
Plan, and shall additionally provide as follows:
_.5.4.1 The number of shares subject to the Option
shall be 20,000.
_.5.4.2 The purchase price per share shall be
the closing price of MIKOHN common stock on the Effective Date to wit $4.063.
_.5.4.3 The Option shall be designated as an
Incentive Option.
_.5.4.4 On each of the next five (5)
anniversary dates of the Effective Date,
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one-fifth (1/5) of the Option Shares shall become eligible for purchase by
Employee.
_.5.4.5 The Option shall terminate on (i) the
expiration date specified in the Stock Option Agreement or (ii) such earlier
date as termination may occur according to the terms and conditions of the Plan
and/or the Stock Option Agreement. Upon termination for any reason, Employee
and/or his successors and assigns shall have only such rights as are specified
in the Plan and the Stock Option Agreement, and shall not be entitled to any
compensation in any form for the loss of any other right.
_.5.4.6 The parties acknowledge that the Option
granted under this Agreement is in addition to an earlier Option grant of
20,000 shares.
_.5.5 Additional Stock Options. During the term of this
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Agreement, Employee may be granted additional stock options. The decision to
grant stock options and the amount thereof shall be within the sole and absolute
discretion of MIKOHN and shall be based on various factors which include without
limitation Employee's performance, the compensation paid to similarly situated
employees of businesses similar in type and size to MIKOHN, the financial
condition of MIKOHN, and the economic and market conditions to which MIKOHN is
or may be subject.
_.5.6 Royalty. MIKOHN shall pay to Employee a royalty equal
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to 7.5% of gross profits generated by any game which is the original creation of
Employee and to which MIKOHN is assigned exclusive worldwide rights.
_.5.7 Relocation Expenses. MIKOHN will reimburse
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Employee for the following relocation expenses:
_.5.7.1 Moving company charges for packing,
moving and unpacking household items including insurance (Employee to provide
three (3) bids);
_.5.7.2 Temporary residence in Las Vegas for up
to 60 days (cost not to exceed $3,000); and
_.5.7.3 Cost of storage for up to 60 days for
household items, if needed.
_.5.8 Employee Benefits. Employee shall receive such
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benefits, fringe benefits and entitlements as is usual and customary for MIKOHN
to provide an employee of like status and position and are consistent with
MIKOHN's established policies on employment, which may be revised from time to
time in the sole discretion of MIKOHN. MIKOHN hereby waives the 90-day
eligibility requirement for Employee and Employee's family members to be
covered by MIKOHN's medical plan.
_.5.9 Travel and Business Expenses. MIKOHN will reimburse
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Employee for reasonable travel and other business expenses incurred in
performing Employee's duties and promoting the business of MIKOHN during the
term of this Agreement.
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_.5.10 Effect of Merger or Consolidation. Any other
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provision in this Agreement to the contrary notwithstanding, all Options to
acquire common stock of MIKOHN granted to Employee during the term of this
Agreement shall become 100% vested upon (i) any merger or consolidation
involving MIKOHN if MIKOHN is not the surviving corporation; (ii) any transfer
of all or substantially all of the assets of MIKOHN; (iii) any voluntary or
involuntary dissolution of MIKOHN; (iv) any material change in ownership of
MIKOHN which results in a change of a majority of the Board of Directors; (v)
if MIKOHN or any successor or assignee of MIKOHN should terminate this
Agreement without cause; or (vi) Employee's death or permanent disability.
_.6 Termination of Employment.
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_.6.1 Employee may terminate this Agreement at any time
with or without stated cause upon thirty (30) days written notice.
_.6.2 MIKOHN may terminate this Agreement at any time with
or without stated cause upon the payment to Employee of a sum equal to
Employee's Base Annual Salary as specified in Section 5.1 above.
_.6.3 For just cause MIKOHN may terminate this Agreement
immediately at any time without further liability to Employee by giving written
notice of termination to Employee.
_.6.4 Termination for any of the reasons set forth in this
Section 6.4 shall be deemed termination for just cause. For purposes of this
Agreement, just cause includes the following: [1] commission of a crime
involving moral turpitude; [2] engaging in any act of dishonesty or material
insubordination; [3] material breach of this Agreement; [4] habitual neglect of
duties which Employee is required to perform under the terms of this Agreement;
[5] failure of Employee to act in a professional manner; [6] failure of Employee
to timely and successfully complete work assigned; [7] failure of Employee to
observe all employment policies of MIKOHN; or [8] any other reason which is
legally sufficient under the laws of the State of Nevada
_.6.5 MIKOHN may terminate this Agreement if it appears in
the reasonable judgment of MIKOHN that due to Employee's employment by MIKOHN:
_.6.5.1 MIKOHN may be subjected to significant
disciplinary action or lose or become unable to obtain or reinstate any
federal, state and/or foreign registration, license or approval material to
MIKOHN's business or the business of any MIKOHN subsidiary; or
_.6.5.2 MIKOHN or any key employee, officer,
director or shareholder of MIKOHN required to qualify or be found suitable
under any gaming law may not so qualify or be found suitable.
_.6.6 MIKOHN may terminate this Agreement if Employee
solicits or accepts any payment or gratuity from any existing or potential
customer or supplier of MIKOHN without the prior written consent of the
President of MIKOHN.
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_.6.7 MIKOHN may terminate this Agreement if Employee has
made any misrepresentation of fact or has failed to disclose any fact which
might be material to MIKOHN's decision to enter into this Agreement including,
without limitation, failure to disclose any criminal or civil fraud charges
brought against Employee at any time or failure to disclose a prior business or
personal bankruptcy action involving Employee.
_.6.8 This Agreement shall terminate automatically in the
event that: (i) Employee fails or is unable to perform Employee's duties due to
injury, illness or other incapacity for ninety (90) days in any twelve (12)
month period (except that Employee may be entitled to disability payments
pursuant to MIKOHN's disability plan, if any); or (ii) death of Employee. Upon
termination of this Agreement as a result of Employee's death, all royalties and
stock options provided herein shall become the property of Employee's estate.
_.6.9 In the event of a termination of Employee's
employment for any reason, Employee shall be required to seek other employment
in order to mitigate any damages resulting from the breach of this Agreement.
_.6.10 In the event this Agreement is terminated by Employee
and Employee accepts subsequent employment with a college or university,
Employee and MIKOHN shall negotiate in good faith a consulting agreement by
which Employee will consult with MIKOHN on an exclusive basis in respect to
games and game development. The terms of such a consulting agreement will allow
Employee to retain the rights to any stock options granted during the term of
this Agreement under Section 5.4 and 5.5 above.
_.7 Covenant of Confidentiality. All documents, records, files,
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manuals, forms, materials, supplies, computer programs, trade secrets, customer
lists, and other information which comes into Employee's possession from time to
time during Employee's 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. Employee acknowledges
that all such confidential and proprietary information is confidential and
proprietary and not readily available to MIKOHN's business competitors. On the
effective date of the termination of the employment relationship or at such
other date specified by MIKOHN, Employee agrees that Employee will return to
MIKOHN all such confidential and proprietary items (including, but not limited
to, company badge and keys) in Employee's control or possession, and all copies
thereof, and that Employee 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 7 shall in any way be construed to narrow or limit the protection
and remedies afforded by the Uniform Trade Secrets Act.
_.8 Covenant of Non-Disclosure. Without the prior written approval
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of MIKOHN, Employee shall keep confidential and not disclose or otherwise make
use of any of the confidential or proprietary information or trade secrets
referred to in Section 7 nor reveal the same to any third party whomsoever,
except as required by law.
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_.9 Covenant of Non-Solicitation.
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_.9.1 Employees. During the Term of this Agreement and for
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a period of two (2) years following the effective date of termination of the
employment relationship, Employee, either on Employee's own account or for any
person, firm, company or other entity, shall not solicit, interfere with or
induce, or attempt to induce, any employee of MIKOHN, or any of its subsidiaries
or affiliates to leave their employment or to breach their employment agreement,
if any, with MIKOHN.
_.9.2 Customers. During the Term of this Agreement and for
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a period the longer of (i) one (1) year following the effective date of
termination of the employment relationship or (ii) the time the Covenant Against
Competition (defined below) remains in effect, Employee, either on Employee's
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. The foregoing
notwithstanding, nothing herein shall be construed to prohibit selling or
licensing any Excluded Inventions (defined below) to any customer of MIKOHN;
provided, however, MIKOHN shall be granted first right of refusal with respect
to any rights in the Excluded Inventions presently held by Employee.
_.10 Covenant of Cooperation. Employee agrees to cooperate with
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MIKOHN in any litigation or administrative proceedings involving any matters
with which Employee was involved during Employee's employment by MIKOHN. MIKOHN
shall reimburse Employee for reasonable expenses incurred in providing such
assistance.
_.11 Covenant Against Competition.
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_.11.1 Scope and Term. During the Term of this Agreement and
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for an additional period after the expiration or termination of the employment
relationship between MIKOHN and Employee, which period shall be the shorter of
(i) the number of days Employee has been employed by MIKOHN or (ii) six (6)
months (the "Initial Non-Compete Term"), Employee 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 Employee from [i] engaging in a business
or accepting employment with a business which does not sell to the gaming
industry; [ii] providing consulting services for casinos and other gaming
operators (not including manufacturers or distributors of gaming devices or
associated gaming equipment); [iii] selling or licensing any Excluded Inventions
(defined below) to any customer of MIKOHN (provided, however, MIKOHN shall be
granted first right of refusal with respect to any rights in the Excluded
Inventions presently held by Employee); [iv] lecturing, giving talks and
symposia, publishing books, technical papers and other writings; [vi], after the
termination of this Agreement, accepting a faculty position with any
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college or university; [vii], after the termination of this Agreement,
consulting for independent game developers approved by MIKOHN who are not
affiliated with any competitor of MIKOHN.
_.11.2 Option to Extend Term. After the expiration of the
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Initial Non-Compete Term, in consideration of the Supplemental Payments provided
in subsection 11.3 below, MIKOHN shall have the option of extending the term of
this Covenant for an additional period ending the earlier of (i) one (1) year
following the effective date of the termination or expiration of the employment
relationship, or (ii) the date MIKOHN discontinues the supplemental payments
specified in subsection 11.3 below. To exercise this option, MIKOHN shall
provide written notice to Employee on or before fifteen (15) days prior to the
expiration of the ninety (90) day term specified in subsection 11.1 above.
_.11.3 Supplemental Payments. After the expiration of the
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Initial Non-Compete Term, and so long as MIKOHN desires this Covenant Against
Competition to remain in full force (not to exceed a period of one (1) year from
the effective date of termination), MIKOHN shall pay to Employee:
_.11.3.1 Upon termination without cause pursuant
to Section 6.2 above or upon expiration of this Agreement pursuant to Section 1
above, a sum each month equal to thirty three and one-third percent (33 1/3%)
of Employee's Base Monthly Salary; or
_.11.3.2 Upon termination by Employee, a sum each
month equal to twenty-five percent (25%) of Employee's Base Monthly Salary; or
_.11.3.3 Upon termination for just cause pursuant
to Section 6.4 above, a sum each month equal to fifteen percent (15%) of
Employee's Base Monthly Salary.
_.11.4 Base Monthly Salary Defined. For purposes of this
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Agreement, "Base Monthly Salary" means one-twelfth (1/12) of Employee's Base
Annual Salary specified in Section 5.1 above. If there is no Base Annual Salary
specified in Section 5.1 or at the time of termination or expiration of this
Agreement Employee was not entitled to receive a Base Annual Salary, "Base
Monthly Salary" means the average monthly compensation paid to Employee by
MIKOHN during the time of his/her employment by MIKOHN.
_.11.5 Acknowledgement. Both parties acknowledge that this
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Covenant only restricts employee's re-employment in the gaming industry and does
not affect Employee's employment opportunities in the non-gaming industry. Both
parties further acknowledge that the employment opportunities in the gaming
industry represent only a small fraction of employment opportunities in the
non-gaming industry. Employee acknowledges that the scope and term of this
Covenant Against Competition are reasonable under the circumstances and the
consideration provided by this Agreement is sufficient remuneration for the
limited restriction this Covenant imposes on Employee's future employment
opportunities.
_.12 Rights to Inventions.
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_.12.1 Inventions Defined. "Inventions" means discoveries,
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concepts, and ideas,
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whether patentable or not, relating to any present or prospective activities of
MIKOHN, including without limitation devices, processes, methods, formulae,
techniques, and any improvements to the foregoing. Inventions described in
Exhibit A attached hereto are excluded from the provisions of this Section 12
("Excluded Inventions").
_.12.2 Application. This Section 12 shall apply to all
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Inventions made or conceived by Employee, whether or not during the hours of
Employee's employment or with the use of MIKOHN facilities, materials, or
personnel, either solely or jointly with others, during the Term of Employee's
employment by MIKOHN and for a period of six (6) months after any termination of
such employment.
_.12.3 Assignment. Employee hereby assigns and agrees to
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assign to MIKOHN all of Employee's rights to Inventions and to all proprietary
rights therein, based thereon or related thereto, including without limitation
applications for United States and foreign letters patent and resulting letters
patent.
_.12.4 Reports. Employee shall inform MIKOHN promptly and
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fully of each Invention by a written report, setting forth in detail the
structures, procedures, and methodology employed and the results achieved
("Notice of Invention"). A report shall also be submitted by Employee upon
completion of any study or research project undertaken on MIKOHN's behalf,
whether or not in the Employee's opinion a given study or project has resulted
in an Invention.
_.12.5 Exploitation Rights.
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_.12.5.1 MIKOHN. After receipt of a Notice of
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Invention, MIKOHN shall have six (6) months to elect to exploit the Invention
commercially. If MIKOHN elects to exploit the Invention commercially, MIKOHN
shall so notify Employee in writing and shall thereafter pay to Employee a
royalty equal to 7.5% of the gross profits generated through MIKOHN's
exploitation of the Invention. Upon notification to Employee that MIKOHN has
elected to exploit the Invention commercially, MIKOHN shall have one (1) year
to develop and submit a prototype of the Invention to a regulatory authority
for approval and after approval by the regulatory authority shall have an
additional one (1) year period to commence commercial exploitation of the
Invention. If MIKOHN has not commenced commercial exploitation of the Invention
within one (1) year after it has received regulatory approval, the rights to
the Invention, subject to Section 12.5.2 below, shall revert to Employee.
_.12.5.2 Employee. If MIKOHN does not elect to
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exploit the Invention commercially, Employee shall have six (6) months
commencing one (1) year after the Notice of Invention is received by MIKOHN to
elect to exploit the Invention commercially. If Employee elects to exploit the
Invention commercially, he shall so notify MIKOHN in writing and shall (i)
within thirty (30) days and shall thereafter pay to MIKOHN a royalty equal to
10% of the gross profits generated through Employee's exploitation of the
Invention.
_.12.6 Patents. At MIKOHN's request and expense, Employee
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shall execute such documents and provide such assistance as may be deemed
necessary by MIKOHN to apply for, defend or enforce any United States and
foreign letters patent based on or related to such
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Inventions.
_.13 Remedies. Notwithstanding any other provision in this
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Agreement to the contrary, Employee acknowledges and agrees that if Employee
commits a material breach of the Covenant of Confidentiality (Section 7),
Covenant of Non-Disclosure (Section 8), Covenant of Non-Solicitation (Section
9), Covenant of Cooperation (Section 10), Covenant Against Competition (Section
11), or Rights to Inventions (Section 12), MIKOHN shall have the right to have
the obligations of Employee specifically enforced by any court having
jurisdiction on the grounds that any such breach will cause irreparable injury
to MIKOHN and money damages will not provide an adequate remedy. Such equitable
remedies shall be in addition to any other remedies at law or equity, all of
which remedies shall be cumulative and not exclusive. Employee further
acknowledges and agrees that the obligations contained in Sections 7 through
12, of this Agreement are fair, do not unreasonably restrict Employee's future
employment and business opportunities, and are commensurate with the
compensation arrangements set out in this Agreement.
_.14 Survivability. Sections 7 through 13, of this Agreement
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shall survive termination of the employment relationship and this Agreement.
_.15 General Provisions.
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_.15.1 Arbitration. Any controversy involving the
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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.
_.15.2 Attorneys' Fees and Costs. If any action in law,
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equity, arbitration or otherwise is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs (including fees incurred for paralegals, investigators,
expert witnesses, etc.), and necessary disbursements in addition to any other
relief to which he/it may be entitled. The term "prevailing party" means the
party obtaining substantially the relief sought, whether by compromise,
settlement, award or judgment.
_.15.3 Authorization. MIKOHN and Employee each represent and
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warrant to the
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other that he/she/it has the authority, power and right to deliver, execute and
fully perform the terms of this Agreement.
_.15.4 Entire Agreement. Employee understands and
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acknowledges that this document constitutes the entire agreement between
Employee and MIKOHN with regard to Employee's employment by MIKOHN and
Employee's 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.
_.15.5 Severability. If any term, provision, covenant, or
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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.
_.15.6 Governing Law. Except to the extent that federal law
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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.
_.15.7 Taxes. All compensation payable hereunder is gross
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and shall be subject to such withholding taxes and other taxes as may be
provided by law. Employee 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.
_.15.8 Assignment. This Agreement shall be binding upon and
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inure to the benefit of the successors and assigns of MIKOHN. Employee may not
sell, transfer, assign, or pledge any of Employee's rights or interests pursuant
to this Agreement.
_.15.9 Waiver. Either party's failure to enforce any
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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.
_.15.10 Captions. Titles and headings to sections in this
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Agreement are for the purpose of reference only and shall in no way limit,
define, or otherwise affect any provisions contained therein.
_.15.11 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
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a court of competent jurisdiction to enjoin such breach.
_.16 Acknowledgement. Employee acknowledges that Employee has been
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given a reasonable period of time to study this Agreement before signing it.
Employee certifies that Employee has fully read, has received an explanation of,
and completely understands the terms, nature, and effect of this Agreement.
Employee further acknowledges that Employee is executing this Agreement freely,
knowingly, and voluntarily and that Employee's execution of this Agreement is
not the result of any fraud, duress, mistake, or undue influence whatsoever. In
executing this Agreement, Employee does not rely on any inducements, promises,
or representations by MIKOHN other than the terms and conditions of this
Agreement.
_.17 Effective Only Upon Execution by Authorized Officer of MIKOHN.
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This Agreement shall have no force or effect and shall be unenforceable in its
entirety until (i) it is approved by the Compensation Committee and Board of
Directors of MIKOHN and (ii) it is executed by a duly authorized officer of
MIKOHN and such executed Agreement is delivered to Employee.
_.18 Agreement Subject to Satisfactory Background Investigation.
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Employee understands and acknowledges that Employee's employment is subject to
the satisfactory conclusion of a background investigation. Any other provision
in this Agreement to the contrary notwithstanding, MIKOHN may terminate this
Agreement without further obligation or liability to Employee if a background
investigation of Employee reveals information which, in the reasonable judgment
of MIKOHN, (i) would materially interfere with, impede or impair the efficient
and effective performance of Employee's duties under this Agreement or (ii)
could subject MIKOHN to significant disciplinary action or cause MIKOHN to lose
or become unable to obtain or reinstate any federal, state and/or foreign
registration, license or approval material to MIKOHN's business or the business
of any MIKOHN subsidiary.
.. . . .
.. . . .
IN WITNESS WHEREOF, the parties hereto have read, understood, and
voluntarily executed this Agreement as of the day and year first above written.
EMPLOYEE MIKOHN GAMING CORPORATION
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxxx X. XxXxxx
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XXXX XXXXXXX
Title: Secretary
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