EXHIBIT 10.9
SEVERANCE AGREEMENT
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This Severance Agreement (this "Agreement") is entered into as of the 17th
day of September, 1999, by and among Xxxxxx X. Xxxxxxxx (hereinafter
"Xxxxxxxx"), American Bingo & Gaming Corp., a Delaware corporation (hereinafter
"ABG"), and Darlington Music Co., Inc., a South Carolina corporation and a
subsidiary of ABG (hereinafter "DMC").
WHEREAS, Xxxxxxxx is an employee of DMC;
WHEREAS, Xxxxxxxx, DMC and ABG have made a collective determination that,
subject to certain terms of separation being agreed to among Xxxxxxxx, DMC and
ABG, it may be in the best interest of Xxxxxxxx, DMC and ABG for Xxxxxxxx to
resign from all positions held with ABG and its subsidiaries; and
NOW, THEREFORE, in consideration of the mutual promises contained herein
and the terms set forth below, the parties agree as follows:
1. Resignation. Xxxxxxxx hereby resigns from any and all positions held
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with ABG and its subsidiaries.
2. Employment Agreement. The Employment Agreement between Xxxxxxxx and DMC
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dated December 18, 1997, as amended February 25, 1998 (the "Employment
Agreement"), is hereby terminated.
In connection with the termination of the Employment Agreement, Xxxxxxxx and DMC
agree that the nondisclosure and noncompete provisions contained in Article 8 of
the Employment Agreement shall survive the termination of Xxxxxxxx'x employment
as provided for in Section 8.7 of the Employment Agreement. However, the terms
of the nondisclosure and noncompete provisions contained in Article 8 of the
Employment Agreement shall be modified in two respects. First, the term
"Restricted Period" as defined in Section 8.3 of the Employment Agreement is
amended to read in its entirety as follows: "For the purpose of this Agreement,
the "Restricted Period" means the period from September 17, 1999 through
September 17, 2002." Second, the noncompete provisions are hereby amended such
that Xxxxxxxx is not prohibited from promoting, operating, managing, or
conducting any video gaming business which operates only machines identified
under Section 12-21-2720(A)(1), Section 12-21-2720(A)(2) or Section 12-21-2730
of the South Carolina Code of Laws. The intent of this modification and
amendment of the noncompete provision contained in Article 8 of the Employment
Agreement is to allow Xxxxxxxx to own, operate and manage the machines which he
is acquiring from DMC and ABG which are set forth on Exhibit A attached hereto.
Furthermore, the parties hereto agree that Xxxxxxxx shall have the right to
place any of the machines set forth on Exhibit A in any location in which ABG or
any of its subsidiaries has placed video gaming machines in the event Xxxxxxxx
can reach agreement with the owner and/or operator of the respective location.
ABG expressly agrees that it, and its subsidiaries, will waive any condition of
the respective Coin Machine Agreement with the owner/operator of any such
location such that the placement of such machines by Xxxxxxxx in the location
will not violate any prohibitions set forth in such Coin Machine Agreement.
As provided in Section 2.3 of the Employment Agreement, DMC acknowledges that
the balance due, including accrued interest thereon, on the Promissory Note
dated February 24, 1998, by and between DMC and Xxxxxxxx is hereby forgiven in
full and any obligation of Xxxxxxxx to make further payments of principal and/or
interest to DMC pursuant to the Promissory Note is hereby terminated and
forgiven.
3. Severance Payment. ABG does hereby agree, as a severance payment, (i) to
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pay to Xxxxxxxx $76,700 and (ii) to transfer to Xxxxxxxx the property specified
on Exhibit A attached hereto, no later than two business days following the date
of this Agreement. The parties further agree that Xxxxxxxx shall not receive,
and shall not be entitled to receive, any further severance or other payments or
benefits, with the expressed exception of the contribution to Xxxxxxxx'x account
under the DMC Profit Sharing Plan #1 accrued for the year ending August 31,
1999, which will be paid pursuant to the terms of the Employment Agreement.
4. Confidentiality. Xxxxxxxx hereby acknowledges, represents and agrees
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that he will maintain the confidentiality of all information obtained regarding
ABG and its subsidiaries, including but not limited to their operations,
management, financial matters, plans and other material data, and that he will
not in any fashion, form or manner, either directly or indirectly, divulge,
disclose or communicate to any person, firm, corporation or other business
entity, in any manner whatsoever, any such confidential information concerning
ABG or its subsidiaries. However, Xxxxxxxx may disclose any information
required by law to be disclosed by Xxxxxxxx after Xxxxxxxx has notified ABG of
such requirement and given ABG the opportunity to review the information to be
disclosed.
5. Xxxxxxxx Global Release. ABG and its subsidiaries hereby release
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Xxxxxxxx from any and all past, present or future claims, demands, actions,
causes of action, costs, judgments, expenses, attorney's fees, damages and all
liabilities whatsoever at law or in equity, whether known or unknown, that ABG
and its subsidiaries may have, claim to have, or have ever had, against Xxxxxxxx
arising from any and all causes of action, whether intentional, wanton,
reckless, malicious, negligent, grossly negligent, or inadvertent, in contract
or in tort. In this regard, the parties to this Agreement intend for the
release provided by this Agreement to cause, to the fullest extent permitted by
law and at equity, the complete and final discharge and extinguishing of all
claims and causes of action against Xxxxxxxx, whether known or unknown,
involving the parties hereto, for all time up to and including the date of this
Agreement. ABG agrees to indemnify and hold Xxxxxxxx harmless from and against
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any and all costs, judgments, expenses, attorney's fees, damages or liabilities
whatsoever relating to any and all claims that may be brought against Xxxxxxxx
in connection with his position as an employee of DMC, and his position as an
officer and/or director of any subsidiary of ABG, to the fullest extent
authorized by Delaware law.
6. ABG Release. Xxxxxxxx hereby releases ABG and its officers and directors
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and the subsidiaries of ABG and their officers and directors from any and all
past, present or future claims, demands, actions, causes of action, costs,
judgments, expenses, attorney's fees, damages and all liabilities whatsoever at
law or in equity, whether known or unknown, that he may have, claim to have, or
have ever had, against ABG and its officers and directors and the subsidiaries
of ABG and their officers and directors arising from any and all causes of
action, whether intentional, wanton, reckless, malicious, negligent, grossly
negligent, or inadvertent, in contract or in tort. In this regard, the parties
to this Agreement intend for the release provided by this Agreement to cause, to
the fullest extent permitted by law and at equity, the complete and final
discharge and extinguishing of all claims and causes of action against ABG and
its officers and directors and the subsidiaries of ABG and their officers and
directors, whether known or unknown, involving the parties hereto, for all time
up to and including the date of this Agreement.
7. DMC Profit Sharing Plan #1. The parties hereto agree that nothing in
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this Agreement shall change, alter or affect the enforcement of the rights and
obligations of the parties under the DMC Profit Sharing Plan #1.
8. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of South Carolina.
9. Severability. If any provision of this Agreement or any portion of any
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provision of this Agreement is at any time deemed or declared void, voidable or
unenforceable, then such provision or portion of such provision is severable
from the remainder of this Agreement and the remainder of this Agreement shall
be fully enforced.
10. Further Assurances. The parties shall from time to time promptly
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execute and deliver such further instruments, documents or papers and perform
all acts necessary or proper to carry out and effect the terms and provisions of
this Agreement.
11. Counterparts and Fax Signature Pages. It is understood and agreed that
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this Agreement may be executed in duplicate counterpart originals, each of which
shall be deemed an original for all purposes. Signatures need not be in
original and a facsimile and/or copy bearing a copied or facsimile signature
shall suffice as a binding signature for this Agreement.
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12. Supersedes Prior Agreements. It is understood and agreed that this
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Agreement contains the entire agreement among the parties and supersedes any and
all prior agreements and arrangements or understandings among the parties
relating to the subject matter hereof. No oral understanding, statements,
promises or inducements contrary to the terms of this Agreement exist. This
Agreement cannot be changed or terminated orally.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
WITNESS: AMERICAN BINGO & GAMING CORP.
/s/ Xxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
WITNESS: DARLINGTON MUSIC CO., INC.
/s/ Xxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
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EXHIBIT A
PROPERTY LISTING
[Exhibit A contains a listing of approximately 48 jukeboxes, 100 pool tables and
65 video games, none of which are video gaming machines of the type operated by
the Company.]
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