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EXHIBIT 10(N)
AGREEMENT
This AGREEMENT, dated as of January 2, 1995, is made by and between Xxxxx
X. Xxxx (hereinafter referred to as the "Executive") and The Sands Regent, a
Nevada corporation (the "Company").
RECITALS
A. The Executive Compensation Committee of the Board of Directors of the
Company has determined that it is in the best interest of the Company's
shareholders that appropriate steps should be taken to reinforce and encourage
the continued dedication of the Executive to the Executive's assigned duties
without distraction arising from the possibility of a Change of Control of the
Company.
B. In order to induce the Executive to remain in the employ of the Company
and to induce the Executive to give the Executive's continued attention and
dedication to the Executive's assigned duties in the event of a Change of
Control of the Company, the Company desires to provide the Executive with
certain benefits and inducements, as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the Company and the Executive do hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement, shall have the meaning
specified below:
SECTION 1.1 -- BOARD OF DIRECTORS.
"Board of Directors" shall mean the board of directors of the Company.
SECTION 1.2 -- CAUSE.
"Cause" shall mean termination of employment with the Company because of
(i) the Executive's willful failure or refusal to satisfactorily perform the
duties of his position after notice by the Company; (ii) the commission by the
Executive of a felony or the willful perpetration by the Executive of a
dishonest act against or breach of fiduciary duty toward the Company; or (iii)
any other act or omission by the Executive which is injurious in any material
respect to the Company.
SECTION 1.3 -- CHANGE IN CONTROL.
A "Change in Control" shall be deemed to have occurred if (i) any person or
group of persons (as defined in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "1934 Act") together with its affiliates,
excluding employee benefit plans of the Company is or becomes, directly or
indirectly, the "beneficial owner" (as defined in Rule 13d-3 promulgated under
the 0000 Xxx) of securities of the Company representing 20% or more of the
combined voting power of the Company's then outstanding securities; or (ii) as a
result of a proxy contest, merger, consolidation, sale of assets, tender offer
or exchange offer or as a result of any combination of the foregoing, Directors
who were members of the Board of Directors two years prior to such time and new
Directors whose election or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the Directors
still in office who were Directors two years prior to such time, cease to
constitute at least two-thirds of the members of the Board of Directors; or
(iii) the shareholders of the Company approve a merger or consolidation of the
Company with any other corporation or entity regardless of which entity is the
survivor, other than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
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represent (either by remaining outstanding or being converted into voting
securities of the surviving entity) at least 80% of the combined voting power of
the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; or (iv) the shareholders of the
Company approve a plan of complete liquidation or winding-up of the Company or
an agreement for the sale or disposition by the Company of all or substantially
all of the Company's assets.
SECTION 1.4 -- CODE.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
SECTION 1.5 -- COMPANY.
"Company" shall mean The Sands Regent, a Nevada corporation, its
subsidiaries and affiliates, and any successor to its business, whether direct
or indirect, by purchase of securities, merger, consolidation, purchase of all
or substantially all of the Company's assets or otherwise.
SECTION 1.6 -- DATE OF TERMINATION.
"Date of Termination" shall mean in the case of termination of the
Executive's employment by the Company for Cause or termination by the Executive
for Good Reason or termination for any other reason, the date specified in the
Notice of Termination, which date shall not be less than thirty days after the
date such Notice of Termination is given.
SECTION 1.7 -- DISABILITY.
"Disability" shall mean absence from performance of assigned duties for the
Company on a full-time basis for 12 consecutive calendar months as a result of
incapacity due to medically documented physical or mental illness; provided that
the Executive shall not have returned to the full-time performance of the
Executive's duties within 30 calendar days of actual receipt of written Notice
of Termination for the reason of Disability. Such Notice of Termination may not
be given prior to the expiration of the 12-month period of Disability.
SECTION 1.8 -- EXECUTIVE.
"Executive" shall have the meaning provided in the first paragraph of this
Agreement.
SECTION 1.9 -- GOOD REASON.
"Good Reason" shall mean the occurrence of any of the following events
without the Executive's express written consent:
(a) the assignment to the Executive of duties inconsistent with the
position and status of an executive of the Company, or a substantial
alteration in the nature, status or prestige of the Executive's
responsibilities as Chief Financial Officer of the Company from those in
effect immediately prior to a Change in Control;
(b) a reduction by the Company in the Executive's base salary or bonus
opportunity as in effect immediately prior to the occurrence of a Change of
Control;
(c) the reassignment of the Executive to a location which increases
the Executive's commute by more than 50 miles on a daily round trip basis;
(d) the Executive's assignment to a location other than the principal
executive offices of the Company;
(e) the Company's failure to continue, or a substantial change in, the
Executive's participation in any compensation or benefit plans;
(f) the Company's failure to obtain the agreement of any successor to
assume the Agreement;
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(g) any other items which in the Company's judgment should give the
Executive the right to terminate his employment and receive severance
benefits; or
(h) any purported termination of the employment of the Executive by
the Company which is not effected according to the requirements of a Notice
of Termination as defined in Section 1.10 herein.
SECTION 1.10 -- NOTICE OF TERMINATION.
"Notice of Termination" shall mean a notice, in writing, to the Executive
from the Company or to the Company from the Executive, which indicates the
specific termination provision enumerated in this Agreement relied upon, and
which sets forth in reasonable detail the facts and circumstances alleged to
provide a basis for termination of the Executive's employment by the Company or
by the Executive. Such notice must be communicated to the Executive in
accordance with Section 4.3 herein.
SECTION 1.11 -- RETIREMENT.
"Retirement" shall mean termination of the Executive's employment on or
after the date on which the Executive attains sixty-five years of age or
termination in accordance with any retirement agreement entered into between the
Executive and the Company.
ARTICLE II
TERM
This Agreement shall be effective commencing on the date hereof and shall
continue in effect through February 28, 2000; provided, however, that if a
Change of Control shall have occurred during the term of this Agreement, this
Agreement shall continue in effect for the lesser of (i) a period of 36 months
beyond the effective date of the Change of Control; or (ii) a period ending on
the date of the Retirement of the Executive.
ARTICLE III
BENEFITS AND COMPENSATION
SECTION 3.1 -- WHEN BENEFITS PAYABLE.
No benefits shall be payable under this Agreement and the provisions of
this Agreement shall be of no force or effect unless there shall have been a
Change in Control, and the Executive's employment with the Company shall have
been terminated within three years after the Change in Control. If such a Change
in Control has occurred and the Executive's employment with the Company is
terminated within three years after the Change in Control, unless such
termination is (i) because of the death or Disability of the Executive, or (ii)
by the Executive other than for Good Reason, the Executive shall be entitled to
the benefits enumerated in this Article 3, under the conditions imposed herein.
SECTION 3.2 -- BENEFITS UPON TERMINATION FOR CAUSE.
In the event that the Executive's employment with the Company is terminated
for Cause, the Executive shall receive the Executive's full base compensation
(plus accrued but unpaid vacation benefits) as earned through the Date of
Termination at the rate in effect at the time Notice of Termination is given.
Following payment of said amount, the Company shall have no further obligations
to the Executive under this Agreement.
SECTION 3.3 -- BENEFITS UPON RETIREMENT.
In the event that the Executive's employment with the Company is terminated
by reason of the Executive's Retirement, the Executive shall be entitled to the
benefits under the Company's regular
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retirement program, or, if a separate retirement agreement has been entered into
between the Executive and the Company, benefits shall be provided according to
the terms of that agreement.
SECTION 3.4 -- BENEFITS UPON TERMINATION OTHER THAN FOR CAUSE, RETIREMENT OR
DISABILITY; OR TERMINATION FOR GOOD REASON.
In the event that the employment of the Executive shall be terminated (i)
by the Company for any reason other than for Cause, Disability or Retirement
within three years after the occurrence of such Change in Control or (ii) by the
Executive for Good Reason within three years after the occurrence of such Change
in Control, then
(a) the Executive shall be entitled to receive: (i) the Executive's
full base compensation (plus accrued but unpaid vacation benefits) as
earned through the Date of Termination at the rate in effect at the time
Notice of Termination is given; (ii) for a 36-month period after such
termination (or such lesser number of months up to the date of the
Executive's Retirement or until the date the Executive obtains a new job of
similar status), life, disability, accident and health insurance coverage
substantially the same as that which the Executive received immediately
prior to the Change of Control but increased to the extent that such
benefits were increased following the Change of Control; and (iii) a lump
sum payment (the "Severance Payment") from the Company to the Executive of
a dollar amount equal to 300% of (x) the greater of (1) the annual base
compensation for the Executive for the twelve-month period immediately
preceding the Change of Control or (2) the annual base compensation of the
Executive in effect at the time the Notice of Termination is given and (y)
any bonus paid during the twelve-month period immediately preceding the
time the Notice of Termination is given.
(b) all options to purchase securities of the Company then held by the
Executive shall be immediately exercisable, without regard to whether such
options are exercisable at such time pursuant to the terms of the documents
under which such options were granted; provided that if such Change of
Control is to be accomplished through a tender offer or an exchange offer,
such options shall be exercisable at a time that shall permit the Executive
to tender the shares received upon the exercise of the options in such
tender or exchange offer; and
(c) any securities of the Company then held by the Executive that are
subject to any restriction on transfer, other than restrictions imposed
only be federal or state securities laws, shall lapse and be of no further
force and effect with the result that the Executive shall be permitted to
sell, transfer or otherwise dispose of such securities without regard to
any such restrictions.
SECTION 3.5 -- TAX DEDUCTIBILITY OF BENEFIT PAYMENTS.
In the event that any payment or benefit received or to be received by the
Executive in connection with the termination of the Executive's employment
pursuant to the terms of this Agreement would not be deductible (in whole or in
part) by the Company as a result of the operation of Section 280G of the Code,
the amount of the Severance Payment shall be reduced (but not below zero) until
no portion of the Severance Payment is not deductible as a result of Section
280G of the Code.
SECTION 3.5 -- LEGAL FEES AND EXPENSES.
If, following termination of the employment of the Executive within three
years after a Change in Control, the Executive shall incur any legal fees or
expenses as a result of the termination of the Executive's employment (including
any such fees or expenses incurred in contesting or disputing any such
termination or in seeking to obtain or enforce any right or benefit provided by
this Agreement), the Company shall pay or reimburse the Executive for all such
fees or expenses; provided, however, that if the Executive is terminated for
"Cause," the losing party shall pay the attorneys fees and costs of the
prevailing party.
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SECTION 3.6 -- NO MITIGATION.
Except as provided in Section 3.4(a)(ii) of this Agreement, the Executive
shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Agreement be reduced or offset by any
compensation earned by the Executive as a result of employment by another
employer or by retirement benefits after the Date of Termination or otherwise.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 -- SUCCESSORS; BINDING AGREEMENT.
The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. The failure of
the Company to obtain such assumption agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as the Executive would be entitled to hereunder if the Executive had
terminated the Executive's employment for Good Reason, except that for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
SECTION 4.2 -- SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of, and be enforceable by, the
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the Executive. If the Executive should
die within three years after a Change in Control and during the term of this
Agreement and while any amount would still be payable to the Executive hereunder
if the Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
the Executive's devisee, legatee or other designee or if there is no such
designee, to the Executive's estate.
SECTION 4.3 -- NOTICE.
Notices and all communications provided for in this Agreement shall be in
writing and shall be deemed to have been received when delivered or mailed by
United States registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth at the end of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Board of Directors with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
SECTION 4.4 -- NO WAIVER.
No provision of this Agreement may be modified, waived or discharged unless
in writing and signed by the Executive and such officer of the Company as may be
specifically designated or authorized by the Board of Directors or by a
Committee of the Board of Directors. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
SECTION 4.5 -- ENTIRE AGREEMENT.
No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by either party which
are not expressly set forth in this Agreement and this Agreement constitutes the
entire agreement of the parties.
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SECTION 4.6 -- CONTROLLING LAW.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Nevada.
SECTION 4.7 -- INVALID PROVISION.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
SECTION 4.8 -- COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original, and all such counterparts together shall constitute
but one and the same instrument.
SECTION 4.9 -- THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY.
Nothing contained in this Agreement (i) obligates the Company or any
subsidiary of the Company to employ the Executive in any capacity whatsoever, or
(ii) prohibits or restricts the Company (or any such subsidiary) from
terminating the employment, if any, of the Executive at any time or for any
reason whatsoever, with or without cause.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
"COMPANY"
THE SANDS REGENT, a Nevada Corporation
Dated: February 6, 1995 By: XXXX XXXXXXXXX, XX.
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President
By: XXXX XXXXXXXXX, III
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Secretary
Address:
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
"EXECUTIVE"
Dated: February 6, 1995 XXXXX X. XXXX
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Xxxxx X. Xxxx
Address:
0000 Xxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
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