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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective March 1, 1999, by and
between LEISURE TIME CASINOS & RESORTS, INC., a Colorado corporation (the
"Company"), and XXXX XXXXXX (the "Employee"). The Company hereby continues the
employment of the Employee and the Employee hereby accepts continued employment
with the Company on the terms and conditions hereinafter set forth.
1. TERM. Subject to the provisions for termination as hereinafter
provided in this Agreement, the term of this Agreement shall commence effective
on March 1, 1999, and shall terminate on January 31, 2002.
2. NATURE OF EMPLOYMENT. The Company hereby employs the Employee as the
Vice President of Sales and Marketing of the Company to perform such duties as
may be directed by the President or Executive Vice President of the Company. The
Employee accepts such continuation of employment, agrees to abide by the
Articles of Incorporation, Bylaws, Company policies and the provisions of this
Agreement and agrees to devote his full time and best efforts to his employment
under this Agreement as is reasonably required. The Employee may carry on
outside activities so long as those activities neither conflict nor compete with
the Employee's job responsibilities and corporate duties. The Employee shall at
all times, faithfully with due diligence and to the best of the Employee's
ability, experience and talent, perform all the duties hereunder.
3. COMPENSATION, VACATIONS AND EXPENSES.
a. SALARY. The Company shall pay to the Employee a salary during the
term of this Agreement in accordance with the amount set forth on
Schedule A hereof. This amount may be increased as determined by the
Company through an amendment to Schedule A.
b. VACATIONS AND FRINGE BENEFITS. The Employee shall be entitled to
an annual vacation of at least the minimum vacation time established by
the Company for its employees. The Employee shall further be entitled
to participate in and receive the benefits provided under any employee
benefit program which may be adopted and maintained by the Company
(including, without limitation, those described on Schedule A) and for
which the Employee is eligible by virtue of Employee's employment
hereunder, but only as and to the extent the Employee would otherwise
be eligible as provided in any said program.
c. REIMBURSEMENT OF EXPENSES. The Employee is authorized to incur
reasonable expenses while performing the Employee's duties under this
Agreement, including expenses for entertainment, travel, automobile and
similar items incurred on behalf of the Company in an amount consistent
with Company policies. The Company will reimburse the Employee upon the
presentation by the Employee of itemized accounts of such reasonable
and appropriate expenditures.
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4. TERMINATION OF AGREEMENT.
a. TERMINATION BY EMPLOYEE. The Employee may terminate this
Agreement without cause upon 120 days prior written notice to the
Company. In such event, the Employee shall continue to render the
services required under this Agreement and shall be paid on the regular
payment dates the compensation set forth in Schedule A up to the date
of termination.
b. TERMINATION BY THE COMPANY. If the Employee materially fails or
refuses to observe the provisions of this Agreement or if the Company
determines in its sole discretion that the Employee is not
satisfactorily performing any of the duties required of the Employee
under this Agreement, the Company shall give the Employee written
notice of such failure or refusal and, if the Employee does not correct
such failure or refusal within five (5) days after the giving of such
notice, this Agreement may be terminated by the Company immediately
upon written notice of such termination to the Employee and upon
payment by the Company to the Employee for all compensation accrued
under this Agreement to the date of termination. In the event of the
Employee's fraud, misappropriation or embezzlement of funds or
conviction for any crime punishable as a felony, the Company may
terminate this Agreement immediately upon written notice of such
termination to the Employee and upon payment by the Company to the
Employee for all compensation accrued under this Agreement to the date
of termination. In the event of a termination of the Employee's
employment for cause in accordance with this Section 4.b, the Company
shall have no further obligation to the Employee. However, termination
of the Employee's employment for cause shall not terminate or
extinguish the Employee's obligation or liability to pay to the Company
or any of its affiliates any amount owed to them by the Employee,
including, but not limited to, any amounts misappropriated, embezzled
or otherwise obtained by the Employee by reason of any of the
occurrences referred to in this Section 4.b without prejudice to any
other rights or remedies of the Company or its affiliates at law or in
equity.
c. TERMINATION UPON DEATH OF EMPLOYEE. This Agreement shall
automatically terminate in the event of the Employee's death. In such
case, any accrued compensation or benefits shall inure to the estate of
the Employee and the payment thereof shall be the only liability the
Company shall have to the Employee's estate.
5. EMPLOYEE ACTIONS.
a. EMPLOYEE SHALL NOT DISCLOSE INFORMATION. The Employee recognizes
and acknowledges that the list of the customers, as it may exist from
time to time, of the Company (which for purposes of this section 5
includes the Company's subsidiaries and affiliates) and any other
proprietary or confidential information, including, but not limited to
financial information and information pertaining to the software,
manufacturing, marketing and sales operations, financing operations and
potential acquisitions (hereinafter "Confidential Information"), used
by the Company in its business are valuable and unique assets of the
Company. Except as
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permitted by the next sentence, the Employee will not during or for a
period of three years after the term of his employment, disclose any
Confidential Information to any person, firm, corporation, association
or other entity for any reason or purpose whatsoever without the prior
written consent or authorization of the board of directors of the
Company. Notwithstanding the prohibitions contained in the foregoing
sentence, the Employee shall be permitted to disclose such information
during the term of his employment to other persons employed by the
Company who have a need to know such information for a proper purpose
related to the business of the Company. Upon termination of the
Employee's employment by the Company, the Employee shall neither take
nor retain any papers, customer lists, manuals, files or other
documents or copies thereof belonging to the Company. To the extent any
items of Confidential Information constitute trade secrets under
Georgia law, Employee's obligations of confidentiality and
nondisclosure shall continue to survive after said three year period to
the greatest extent permitted by applicable law. These rights of the
Company are in addition to those the Company has under the common law
or applicable statutes for the protection of trade secrets.
b. NON-COMPETE. The Employee hereby covenants and agrees that the
Employee will not, without the prior written consent of the Company,
directly or by assisting others, whether individually or through any
entity controlled by the Employee, during the term of this Agreement
and for a period of six months after the termination of this Agreement
for any reason (the "Restrictive Period"), on Employee's own behalf or
in the service or on behalf of others, whether or not for compensation,
engage in any activity that involves designing, developing,
manufacturing, leasing, selling or operating electronic gaming machines
in any state of the United States where the Company, as of the
effective date of this Employment Agreement, is engaged in the business
of designing, developing, manufacturing, leasing, selling or operating
electronic gaming machines or in any country outside of the United
States where the Company, as of the effective date of this Employment
Agreement, is engaged in the business of designing, developing,
manufacturing, leasing, selling or operating electronic gaming
machines. In addition, during the Restrictive Period, the Employee
shall not have any controlling interest in any person, firm,
corporation or business, through a subsidiary or parent entity or other
entity which engages in designing, developing, manufacturing, leasing,
selling or operating electronic gaming machines. Notwithstanding the
foregoing, the Employee may own shares of other competing companies the
securities of which are publicly traded, so long as such securities do
not constitute five percent or more of the outstanding securities of
any such company.
c. NON-SOLICITATION OF COMPANY EMPLOYEES. During the Employee's
employment with the Company and for six months thereafter, Employee
shall not solicit or in any manner encourage employees of the Company
to leave the employ of the Company. The foregoing prohibition applies
only to employees with whom the Employee had material contact pursuant
to Employee's duties during Employee's employment term. "Material
contact" means interaction between the Employee and another employee of
the Company: (i) with whom Employee actually dealt; or (ii) whose
employment or dealings with the Company or services for the Company
were handled, coordinated or supervised by the Employee.
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d. NON-SOLICITATION OF COMPANY CUSTOMERS. During the Employee's
employment with the Company and for six months immediately following
cessation of Employee's employment with the Company for any reason,
Employee shall not, on Employee's own behalf or on behalf of any
person, partnership, association, corporation or business organization,
entity or enterprise (except the Company), solicit any customer of the
Company or any representative of any such customer with a view to
selling or providing any product, equipment or service competitive or
potentially competitive with any product, equipment or service sold or
provided by the Company during the two year period immediately
preceding cessation of Employee's employment with the Company, provided
that the restrictions set forth herein shall apply only to customers of
the Company or representatives of such customers with whom Employee had
material contact during such two year period. "Material contact" exists
between Employee and each of the existing customers of the Company: (i)
with whom Employee actually dealt; or (ii) whose dealings with the
Company were handled, coordinated or supervised by Employee.
e. INTELLECTUAL PROPERTY. The Employee shall disclose to the Company
all ideas and business plans developed by the Employee during the term
of the Employee's employment with the Company which relate to the
business conducted by the Company. All patents, patent applications,
patent licenses, formulas, inventions, improvements, designs,
discoveries, processes, software, copyrights, know-how, proprietary
information, rights, trademarks or trade names or future improvements
thereto developed or conceived of by the Employee during any period of
employment with the Company shall be promptly disclosed to, and all
rights with respect thereto shall be assigned by the Employee to, the
Company in consideration of the remuneration paid or payable to the
Employee hereunder and shall be considered work made for hire for the
Company within the meaning of Title 17 of the United States Code. The
Employee acknowledges that "software" as used in this Section 5.e shall
include without limitation all ideas, concepts, know-how, methods,
techniques, structures, information and materials relating to the
software including source code, object and load modules, requirements
specifications, design specifications, design notes, flow charts,
decoding sheets, annotations, documentation and the structures,
organization, sequence, designs, formulas and algorithms which reside
in the software and which are not generally known to the public or
within the industries or trades in which the Company competes.
f. REMEDIES. The Employee acknowledges and agrees that Employee's
obligations provided in this Section 5 are necessary and reasonable in
order to protect the Company and its business and the Employee
expressly agrees that monetary damages would be inadequate to
compensate the Company for any breach by Employee of Employee's
covenants and agreements set forth herein. Accordingly, Employee agrees
and acknowledges that any such violation or threatened violation of
this Section 5 will cause irreparable injury to the Company and that,
in addition to any other remedies that may be available, in law, in
equity or otherwise, the Company may be entitled to obtain injunctive
relief against the prospective breach of this Section 5 or the
continuation of any such breach by the Employee without the necessity
of proving actual damages.
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g. CONSTRUCTION. In the event that any provision of this Section 5
should ever be deemed to exceed the time, geographic, or other
limitations permitted by applicable law, then such provision shall be
reformed to the maximum time geographic, or other limitations permitted
by applicable law. The provisions of this Section 5 shall be applicable
for the period indicated and shall survive the termination of this
Agreement.
6. GENERAL MATTERS.
a. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Georgia and shall be construed in accordance therewith.
b. NO WAIVER. No provision of this Agreement may be waived except
by an Agreement in writing signed by the waiving party. A waiver of any
term or provision shall not be construed as a waiver of any other term
or provision.
c. AMENDMENT. This Agreement may be amended or altered at any time,
in whole or in part, by filing with this Agreement a written instrument
setting forth such changes, signed by all parties.
d. BINDING EFFECT. This Agreement shall be binding upon the
Employee, the Company and their successors and assigns.
e. CONSTRUCTION. Throughout this Agreement the singular shall
include the plural, the plural shall include the singular and the
masculine shall include the feminine wherever the context so requires.
f. TEXT TO CONTROL. The headings of Sections are included solely for
convenience of reference. If any conflict between any heading and the
text of this Agreement exists, the text shall control.
g. SEVERABILITY. If any provision of this Agreement is declared by
any court of competent jurisdiction to be invalid for any reason, such
invalidity shall not affect the remaining provisions, which shall be
fully severable, and the Agreement shall be construed and enforced as
if such invalid provision had never been included.
h. ENTIRE AGREEMENT OF THE PARTIES. The parties agree that this
document contains the entire agreement and understanding between them
in relation to the subject matter hereof and no representations,
warranties, covenants, understandings or agreements in relation thereto
exist between the parties except as expressly set forth herein.
i. NOTICES. Every notice or other communication to be given by
either party to the other party with respect to this Agreement shall be
in writing and shall not be effective for any purpose unless the same
shall be served personally or by national air courier service or
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United States certified mail, return receipt requested, postage
prepaid, addressed, if to the Company at 0000 Xxxxxxxxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000, Attention, President, and if to the Employee
at 0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000, or such other address or
addresses as the Company or the Employee may from time to time
designate by written notice given as above provided. Every notice or
other communication hereunder shall be deemed to have been given as of
the third business day following the date of such mailing (or as of any
earlier date evidenced by a receipt from such national air courier
service or the United States Postal Service) or immediately if
personally delivered. Notices not sent in accordance with the foregoing
shall be of no force and effect until received by the foregoing parties
as such addresses specified herein.
j. DUPLICATE ORIGINALS. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument.
k. ARBITRATION. Any dispute or controversy of or relating to this
Agreement, or any breach of this Agreement, shall be settled by
arbitration to be held in Atlanta, Georgia, in accordance with the
rules then in effect of the American Arbitration Association or any
successor thereto. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may
be entered on the arbitrator's decision in any court having
jurisdiction and the parties irrevocably consent to the jurisdiction of
the Georgia state courts for this purpose. The Company shall pay the
costs and expenses of such arbitration.
l. ATTORNEYS' FEES. In the event that the Company or the Employee
retains an attorney or attorneys to enforce performance of this
Agreement by the other party or to obtain damages or other relief
because of violation of the terms of this Agreement by the other party,
then all reasonable attorneys' fees and costs of arbitration or
litigation are to be borne and paid by the party determined to have
failed to perform this Agreement or to be liable for damages or against
which other relief is granted.
m. SURVIVORSHIP. The respective rights and obligations of the
parties hereunder shall survive any termination of the Employee's
employment to the extent necessary to the intended preservation of such
rights and obligations.
n. REMEDIES CUMULATIVE; NO WAIVER. No remedy conferred upon a party
by this Agreement is intended to be exclusive of any other remedy and
each and every such remedy shall be cumulative and shall be in addition
to any other remedy given hereunder or now or hereafter existing at law
or in equity. No delay or omission by a party in exercising any right,
remedy or power hereunder or existing at law or in equity shall be
construed as a waiver thereof and any such right, remedy or power may
be exercised by such party from time to time and as often as may be
deemed expedient or necessary by such party in such party's sole
discretion.
The parties have executed this Agreement to be effective as of the date
first above written.
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This Agreement shall replace in its entirety any other Employment
Agreement between the Company or its subsidiaries and the Employee, which
Employment Agreements shall be of no further force and effect as of March 1,
1999.
LEISURE TIME CASINOS & RESORTS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President
Attest:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Secretary
EMPLOYEE:
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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SCHEDULE A
DESCRIPTION OF DUTIES AND COMPENSATION
EMPLOYEE: Xxxx Xxxxxx
POSITION WITH COMPANY: Vice President of Sales and Marketing
COMPENSATION:
Salary: $135,000
Sales Incentive
Program: (Needs to be determined)
BENEFITS:
Insurance: Medical, dental, disability (long and short
term) and life to the extent available to all
employees of the Company and paid in accordance
with Company policy if elected by Employee.
Automobile
Allowance: The Company shall pay Employee an automobile
allowance of $600 per month. The cost of the
automobile and all expenses for the operation
(including insurance) and maintenance of the
automobile shall be paid by Employee.
401(k) Plan: Available for Employee's election if eligible.
Flexible Spending
Account: Available for Employee's election if eligible.
