EXHIBIT 10.35
LAS VEGAS ENTERTAINMENT NETWORK, INC.
EMPLOYMENT AGREEMENT
WITH
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
This Employment Agreement (this "Agreement"), by and between
Las Vegas Entertainment Network, Inc., a Delaware corporation (the "Company"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive"), effective as of October 1, 1997, was
authorized by the Compensation Committee ("Committee") of the Company's Board of
Directors (the "Board") on October ____, 1997.
RECITALS
A. The Committee desires to provide for the continued
employment of Executive and to make certain changes in Executive's employment
arrangements with the Company which the Committee has determined will reinforce
and encourage the continued attention and dedication of Executive to the
Company's business as a member of the Company's management. Executive is willing
to commit himself to continue to serve the Company on the terms and conditions
herein provided.
B. The Company and Exeuctive previsouly entered into an
Employment Agreement, dated March 1, 1995 (the "Prior
Employment Agreement").
C. The Company and Executive wish to terminate the Prior
Employment Agreement and to enter into this Agreement
pursuant to the terms and conditions stated herein.
D. The Committee fully recognizes that the continuing
possibility of a change in the control of the Company is unsettling to
Executive. Therefore, the arrangements set forth below are being made to help
assure a continuing dedication by Executive to his duties to the Company
notwithstanding the occurrence or potential occurrence of a change in control.
In particular, the Committee believes it important, should the Company receive
proposals from third parties with respect to its future, to enable Executive,
without being influenced by the uncertainties of his own situation, to assess
and advise the Company whether such proposals would be in the best interests of
the Company and its shareholders and to take such other action regarding such
proposals as the Board of Directors might determine to be appropriate.
AGREEMENT
In consideration of the premises and the respective covenants
and agreements of the parties herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to continue to employ
Executive, and Executive hereby agrees to continue to serve the
Company, pursuant to the terms and conditions set forth herein.
2. Term. The term of employment of Executive by the Company
pursuant to the terms of this Agreement will commence on October 1, 1997 (the
"Effective Date"), and end on September 30, 2002 (the "Initial Term"); provided,
however, that if the Company fails to notify Executive in writing on or before
October 1, 2001 of its desire to have this Agreement expire at the end of its
Initial Term, this Agreement shall be automatically extended for another term
(the
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"Subsequent Term") ending on the sixth anniversary of the date upon which
Executive receives written notice of the Company's election to terminate this
Agreement. Such notice may be given at anytime during the term of this Agreement
and shall be effective (i) on the fifth anniversary of this Agreement if given
on or before October 1, 2001, or (ii) the sixth anniversary of the date the
termination notice is given to Executive, if given after October 1, 2001. This
Agreement shall terminate at the end of the Initial Term or Subsequent Term, as
applicable (the "Expiration Date"), unless sooner terminated pursuant to Section
7 hereof. The period from the Effective Date to the date this Agreement is
terminated is referred to herein as the "Employment Period."
3. Duties.
(a) The Executive shall be elected Chairman of the Board and
Chief Executive Officer of the Company and, in such
capacity, he shall supervise and direct the entire operation
of the Company and perform such additional duties related to
the business and affairs of the Company as may be delegated
to him from time to time by the Board; provided that
Executive's duties and responsibilities shall be
commensurate with and similar to those generally exercised
and assigned during the 90-day period immediately preceding
the Effective Date.
(b) During the Employment Period, and excluding any periods of
vacation and sick leave to which Executive is entitled,
Executive shall devote his reasonable attention and time
during normal business hours to the business and affairs of
the Company and use his reasonable best efforts to perform
faithfully, fully, competently and efficiently the duties
and responsibilities assigned to him hereunder. During the
Employment Period, it shall not be a violation of this
Agreement for Executive to (i) serve on corporate, civil or
charitable boards or committees, (ii) manage personal
investments and/or business affairs, or (iii) to engage in
other business or profit oriented ventures or enterprises so
long as such activities do not materially interfere with the
performance of Executive's responsibilities as an employee
of the Company in accordance with this Agreement.
4. Place of Performance. During the Employment Period,
Executive shall be based and his services shall be performed at the Company's
principal executive office. Executive agrees and acknowledges that his services
hereunder may require reasonable travel in connection with the Company's
business to an extent consistent with Executive's present business travel
obligations.
5. Compensation and Related Matters.
(a) Salary. As of the Effective Date, Executive's minimum base
salary ("Salary") shall be Three Hundred Fifty Thousand
Dollars ($350,000) per annum, payable as nearly as possible
in equal monthly or semi-monthly installments in accordance
with the payroll practices of the Company which may be in
effect from time to time and subject to such withholding as
may be required by law. Executive may elect to defer payment
of any portion or all of his Salary or any other
compensation payable hereunder pursuant to the provisions of
any deferred compensation plan that the Company may adopt
from time to time.
(b) Employee Benefit Plans. Executive shall participate in any
incentive compensation plan, pension or profit sharing plan,
stock purchase or stock option plan, group health,
disability, life, dental or hospitalization plans, and other
benefit plans maintained by the Company for its executive
employees in accordance with the terms and conditions
thereof; provided, that Executive shall be eligible to and
shall participate in such benefit plans.
(c) Payment Upon a Change in Control. Upon the consummation
of a definitive agreement by the Company and the
purchaser thereunder providing for a Change of Control,
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the Company shall pay Executive a lump sum cash payment of Two Million Dollars
($2,000,000) (the "Change in Control Payment"), regardless of whether this
Agreement is terminated as a result of the Change in Control. Such payment shall
be in addition to all other compensation payable to Executive under this
Agreement. For the purposes of this Agreement, a "Change of Control" shall mean:
(i) The transfer, either directly or indirectly, or through one or more
intermediaries, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934) of 50% or more of
either the then outstanding shares of common stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors, or the last of any series of
transfers that results in the transfer of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act of
1934) of 50% or more of either the then outstanding shares of common stock
or the combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of directors; or
(ii) Approval by the stockholders of the Company of (A) a merger or
consolidation, with respect to which persons who were the stockholders of
the Company immediately prior to such merger or consolidation do not,
immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the merged or
consolidated company's then outstanding voting securities, or (B) a
liquidation or dissolution of the Company or (C) the sale of all or
substantially all of the assets of the Company; or
(iii)The transfer of more than 50% of the assets of the Company, or the last of
any series of related transfers that results in the transfer of more than
50% of the assets of the Company;
provided in each case the cash paid plus the fair market value of any other
consideration given for the Company's securities or assets, as applicable, when
equated to a per share price for the Company's common stock, exceeds by more
than fifteen percentage points the average price of the Company's common stock
over the 90-day period immediately preceding the event giving rise to the Change
in Control.
(d) Annual Bonus. In addition to the compensation set forth above, the Company
may pay to Executive, for each of the Company's fiscal years ending with or
within the Employment Period, an annual or other periodic bonus (the
"Bonus") in such amounts as the Compensation Committee shall determine in
its sole discretion based on the Company's earnings and performance and
Executive's contributions thereto.
(e) Expenses. During the Employment Period, the Company shall promptly
reimburse Executive for all reasonable expenses incurred by Executive in
performing his services hereunder, including, but not limited to, telephone
and telefax expenses, entertainment expenses, travel expenses, and all
living expenses while away from home on business, provided that all such
expenses are incurred and accounted for in accordance with the policies and
procedures established by the Company.
(f) Car Allowance. The Company shall furnish Executive with an automobile
during the Employment Period for his exclusive use and shall reimburse
Employee for all expenses incurred by him in operating and maintaining the
automobile during such period.
(g) Retirement Benefit. If Executive has been employed by the Company for at
least ten (10) years on the Date of Termination (as defined in Section
7(g)), including any period of service predating the Effective Date of this
Agreement, and such termination is other
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than by reason of Sections 7(a) (death), or (c) (cause), the Company shall
provide Executive with an annual retirement benefit (payable in monthly or
semi-monthly installments commencing with the calendar month following the date
of his employment termination) equal to fifty percent (50%) of the average
annual Salary and Bonus received by Executive under Sections 5(a) and (d) of
this Agreement for the twenty-four (24) calendar month period immediately
preceding the date of employment termination.
(h) Parking. During the Employment Period, the Company will provide Executive
with free parking for his automobile at the Company's principal executive
office.
6. Directorship. Executive agrees to serve as a director of
the Company and its subsidiaries if requested to do so by the Board. The Company
shall indemnify Executive for any and all liability (including attorneys' fees)
incurred by Executive in connection with serving the Company in any and all such
capacities (including in his capacity as an officer and/or employee of the
Company and/or its subsidiaries), to the maximum extent permitted by applicable
state law. Executive shall be entitled to receive such additional compensation
for serving on the Company's Board of Directors as the Board may approve.
Executive further agrees that, upon termination of his employment for any
reason, he will resign any directorship held with respect to the Company and its
subsidiaries, effective as of the Date of Termination (as defined in Section
7(g)).
7. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement only under the following circumstances set forth
in Sections 7(a), (b), (c), (d) and (e) below:
(a) Death. Executive's employment hereunder shall terminate upon his death.
(b) Disability. If the Company determines in good faith that the Disability (as
defined below) of Executive has occurred, the Company may give Executive
written notice of its intention to terminate Executive's employment. If the
Company delivers written notice of termination to Executive pursuant to the
preceding sentence, and Executive shall have been absent from his duties
hereunder on a full-time basis for the entire period of one-hundred eighty
(180) consecutive days, and within thirty (30) days after written notice of
termination is received by Executive, Executive shall not have returned to
full-time performance of his duties hereunder, then Executive's employment
hereunder shall terminate effective on the 30th day after such notice of
termination is received by Executive. For purposes of this Agreement,
"Disability" means sickness or physical or mental disability which renders
Executive unable to devote his full time and attention to performing his
duties under this Agreement for one hundred eighty (180) or more
consecutive days.
(c) Cause. The Company may terminate Executive's employment hereunder for
Cause. For purposes of this Agreement, "Cause" means (i) the conviction of
Executive of a felony, provided such conviction is a final determination
and not subject to further appeal, or (ii) the willful breach of any
material provision of this Agreement by Executive (other than any such
failure resulting from his incapacity due to physical or mental illness),
and which is not remedied within fifteen (15) days after a notice of
termination is received by Executive that specifically identifies, as
required below, the facts and circumstances leading the Company to believe
that Executive has willfully violated this Agreement. For purposes of this
subsection, no act, or failure to act, on Executive's part shall be
considered "willful" unless done, or omitted to be done, by Executive in
bad faith and without reasonable belief that his action or omission was in
the best interests of the Company. Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for Cause without (i)
reasonable notice to Executive setting forth the reasons, facts and
circumstances for the Company's intention to terminate for Cause, (ii) an
opportunity for Executive, together with his
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counsel, to be heard before the Board of Directors and (iii) delivery to
Executive of a notice of termination from the Board of Directors finding that in
their good faith opinion Executive was guilty of the conduct set forth above,
and specifying the particulars thereof in reasonable detail.
(d) Termination by Executive for Good Reason. Executive may terminate his
employment hereunder for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean, without Executive's express written consent, the
occurrence (a "Change") of any of the following circumstances:
(i) a significant adverse alteration or diminution in the nature of Executive's
duties or responsibilities from those in effect immediately prior to such
Change, other than insubstantial actions that are fully corrected within
thirty (30) days after receipt of written notice from Executive; or
(ii) any failure by the Company to comply substantially with any of the
provisions of Section 5 of this Agreement, other than insubstantial actions
that are fully corrected within thirty (30) days after receipt of written
notice from Executive; or
(iii)any purported termination by the Company of Executive's employment
otherwise than as expressly permitted by this Agreement, including, but not
limited to, any purported termination which is not effected pursuant to a
Notice of Termination satisfying the requirements of Section 7(f) hereof
(and, if applicable, the requirements of Section 7(c) hereof) (for purposes
of this Agreement, no such purported termination shall be effective); or
(iv) any failure by the Company to comply with any material provision of this
Agreement that has not been cured within thirty (30) days after notice of
such noncompliance has been given by Executive to the Company; or
(v) The Board of Directors shall authorize and direct Executive to cause the
Company to enter into a transaction which would, in Executive's considered
judgment, materially injure the reputation and business standing of the
Company, after Executive has provided to the Board in writing his reasons
why such transaction should not be effected and why it would result in such
material injury.
Executive's right to terminate his employment pursuant to this Section 7(d)
shall not be affected by his incapacity due to physical or mental illness.
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good Reason hereunder.
(e) Expiration of Term. This Agreement shall terminate upon the Expiration Date
as set forth in Section 2, if not earlier terminated pursuant to the
provisions of this Section 7.
(f) Notice of Termination. Any termination of Executive's employment by the
Company or by Executive (other than a termination pursuant to subsections
(a) and (e) of this Section 7) shall be communicated by written "Notice of
Termination" to the other party. For purposes of this Agreement, a Notice
of Termination shall mean a notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of Executive's employment under the provision so indicated,
and (iii) if the Date of Termination (as defined in Section 7(g)) is other
than the date of receipt of such notice, specifies the termination date
(which date shall not be less than fifteen (15) days after the receipt of
such notice). The failure by Executive or the Company to set forth in the
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Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause, as the case may be, shall not waive any right of Executive
or the Company, as the case may be, hereunder or preclude Executive or the
Company, as the case may be, from asserting such fact or circumstance in
enforcing his or its rights hereunder.
(g) Date of Termination. "Date of Termination" shall mean (i) if Executive's
employment is terminated by his death, the date of his death, (ii) if
Executive's employment is terminated pursuant to subsection (b) hereof
(relating to Disability), thirty (30) days after Notice of Termination is
received by Executive (provided that Executive shall not have returned to
the performance of his duties on a full-time basis during such thirty
(30)-day period), (iii) if Executive's employment is terminated pursuant to
subsection (c) hereof (relating to Cause), fifteen (15) days after Notice
of Termination is received by Executive, (iv) if Executive's employment is
terminated pursuant to subsection (d) hereof (relating to termination for
Good Reason), thirty (30) days after the Notice of Termination is received
by the Company, (v) if Executive's employment is terminated under
subsection (e) hereof on the Expiration Date as set forth in Section 2, and
(vi) if Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination.
8. Compensation Upon Termination.
(a) If Executive's employment is terminated by reason of his death or
Disability pursuant to Section 7(a) or (b), this Agreement shall terminate
without further obligations to Executive's legal representatives under this
Agreement; provided, however, that Executive or his legal representatives
shall receive
(i) all compensation and obligations accrued or earned by Executive through the
Date of Termination (including any payments due under Section 5(c) hereof);
(ii) any accrued vacation pay not yet paid by the Company;
(iii)a lump sum cash payment equal to the amount of Salary that Executive would
have been entitled to receive pursuant to Section 5(a) hereof from the Date
of Termination through and including the Expiration Date if Executive had
been employed by the Company through the Expiration Date (with the
Expiration Date determined by assuming that a Notice of Termination was
given to Executive on the Date of Termination); and
(iv) in the case of a termination under Section 7(b), the Company shall be
obligated to make the payments required under Section 5(g) (if applicable)
for the remainder of Executive's life.
All of the amounts set forth in clauses (i), (ii) and (iii) shall be paid to
Executive, Executive's estate or Executive's beneficiaries, as applicable, in a
lump sum cash payment within ninety (90) days of the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, Executive or
Executive's family, as the case may be, shall be entitled to receive benefits at
least equal to the most favorable benefits provided by the Company to families
of disabled or deceased employees of the Company, as the case may be, under such
plans relating to benefits for families of disabled or deceased employees of the
Company, as the case may be, if any, in accordance with the most favorable
practices of the Company in effect at any time during the Employment Period.
(b) If Executive's employment shall be terminated by the Company for Cause, or
by Executive other than for Good Reason, or should this Agreement terminate
pursuant to Section 7(e), the Company shall pay Executive all compensation
and obligations accrued or earned by
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Executive through the Date of Termination and any accrued vacation pay not yet
paid by the Company (the "Accrued Compensation"). All such Accrued Compensation
shall be paid to Executive in a lump sum in cash within ninety (90) days of the
Date of Termination. Other than the payment of such Accrued Compensation, the
Company shall have no further obligation to Executive under this Agreement and
Executive acknowledges and agrees that this Section 8(b) states his entire and
exclusive rights, entitlements and remedies against the Company, its successors,
assigns, affiliates, employees and representatives in connection with the
termination of his employment by the Company for Cause or by Executive other
than for Good Reason.
(c) If (i) in breach of this Agreement, the Company shall terminate Executive's
employment other than pursuant to Section 7(a) (relating to death), Section
7(b) (relating to Disability), or Section 7(c) (relating to Cause) (it
being understood that a purported termination pursuant to Section 7(b) or
7(c) hereof which is disputed and finally determined not to have been
proper shall be a termination by the Company in breach of this Agreement),
or (ii) Executive shall terminate his employment for Good Reason, then
(A) the Company shall make a lump sum payment of cash to Executive equal to the
sum of the amounts set forth in Section 5(c) (if applicable) and Sections
8(a)(i), (ii) and (iii) within ninety (90) days of the Date of Termination;
(B) the Company shall pay Executive the retirement benefit set forth in Section
5(g) (if applicable) for the remainder of his life;
(C) the Company shall pay Executive a lump sum in cash equal to the present
value of all additional accrued benefits, as calculated by an actuary
selected by Executive using reasonable assumptions, so long as the interest
rate assumption is one percentage point less than the "Applicable Interest
Rate" (as defined in Section 411(a)(11)(B) (ii) of the Code), that
Executive would have received under all pension and retirement plans
maintained by the Company, if Executive's employment would have continued
through the Expiration Date (determined by assuming that Executive received
a Notice of Termination on the Date of Termination), disregarding any
limitation imposed by law on an amount payable by a qualified pension plan,
less any amounts which will be paid by such plans; provided, however, that
for purposes of calculating the Company's payment to Executive pursuant to
this subsection (c), Executive shall be deemed to be 100% vested in any and
all applicable employee pension plans as of the last day of the Employment
Period; and provided further, that if any pension plan in which Executive
participates shall be discontinued, for purposes of calculating the
Company's payment to Executive pursuant to this subsection (c), such
discontinued plan shall be deemed to have been in full force and effect
without interruption for the entire Employment Period;
(D) through the Expiration Date, the Company shall continue all other benefits
to Executive and/or Executive's family at least equal to those benefits
which would have been provided to Executive and/or Executive's family in
accordance with the plans, programs, practices and policies referred to in
this Agreement if Executive had been employed by the Company through the
Expiration Date (with the Expiration Date determined by assuming that
Executive received a Notice of Termination on the Date of Termination);
(E) any stock options to purchase stock of the Company held by Executive on the
Date of Termination which are not at such time currently exercisable shall,
as of that date, automatically become exercisable;
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(F) all shares of stock of the Company held by Executive under any restricted
stock plan which are still subject to restrictions on the Date of
Termination shall, as of that date, automatically become free of all
restrictions;
(G) the Company will provide Executive with suitable office space (equivalent
to that occupied by Executive at the time of the Date of Termination and
private secretarial services in Los Angeles away from the Company's offices
for a period of two (2) years following the Date of Termination; and
(H) the Company shall, at Executive's election, either (A) reimburse Executive
for all expenses incurred by him in finding new employment plus the costs
of moving Executive and his family and possessions to a new location; or
(B) pay Executive One Hundred Thousand Dollars ($100,000) in cash within
ninety (90) days of the Date of Termination.
Other than the payment of the amounts set forth above in this
Section 8(c), the Company shall have no further obligations to Executive under
this Agreement and Executive acknowledges and agrees that this Section 8(c)
states his entire and exclusive rights, entitlements and remedies against the
Company, its successors, assigns, affiliates, employees and representatives in
connection with the termination by the Company of his employment under the
circumstances described in Section 8(c)(i) or by Executive for Good Reason under
Section 8(c)(ii).
9. Nondisclosure. Executive agrees not to disclose, either
while in the Company's employ or at any time thereafter, to any person not
employed on a full-time basis by the Company or its affiliates, or not engaged
to render services to the Company or its affiliates, except with the prior
written consent of an officer authorized to act in the matter by the Board, any
confidential information obtained by Executive while in the employ of the
Company, provided, however, that this provision shall not preclude Executive
from the use or disclosure of information known generally to the public or of
information not treated as confidential by the Company or from disclosure
required by law or court order. The agreement made in this Section 9 shall be in
addition to, and not in limitation or derogation of, any obligations otherwise
imposed by law or by separate agreement upon Executive in respect of
confidential information of the Company.
10. Successors; Binding Agreement.
(a) The Company will use its best efforts to require any and all successors to
all or substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to Executive, 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. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to terminate his employment for Good
Reason. As used in this Agreement, "Company" shall mean the Company as
herein before defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Section 10 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law. Executive agrees and acknowledges
that the provisions of this Section 10 do not apply to a merger in which
the Company is the surviving corporation (it being understood that the
Company's obligations hereunder would be unaffected thereby).
(b) Since this Agreement is based upon the unique abilities of Executive, he
shall have no right to delegate his duties under this Agreement without the
written consent of the Company.
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(c) This Agreement and all rights of Executive hereunder shall inure to the
benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any
amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's designee or, if
there be no such designee, to Executive's estate.
11. Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or
on the day following delivery to a reputable overnight courier, postage prepaid,
addressed as follows:
If to Executive: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: Las Vegas Entertainment Network, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
or to such other address as any party may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by Executive and the Company's 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. 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 set forth expressly in this Agreement. Except as provided in Section 20,
any dispute between the parties shall be submitted to arbitration, the venue for
which shall be Los Angeles, California, unless otherwise agreed to in writing by
the parties. In the event of any proceeding brought to enforce this Agreement,
the prevailing party shall be entitled to costs of suit and attorneys' fees, in
addition to any other remedies available. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California without regard to its conflicts of law principles.
14. Validity. The invalidity or unenforceability of any provision or 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.
15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.
16. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of any subject matter contained herein and
supersedes all prior severance or other agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral
or written, by any officer, employee or representative of any party hereto,
except for any
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agreements related to Executive's acquisition of, or right to acquire, the
Company's or its subsidiaries' stock and except for the Company's obligation to
pay Executive his accrued or deferred salary for any period ending on or prior
to September 30, 1997, and which shall be paid by the Company to Executive on or
before the earlier of (i) April 15, 1998, or (ii) the termination of this
Agreement, and, except as set forth in the immediately preceding clause, any
prior agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled, including, without limitation, the
Prior Employment Agreement.
17. Expenses. The Company shall reimburse Executive for any legal expenses
incurred in preparing this Agreement and any related agreements.
18. Executive's Representations. Executive represents that, to the best of his
knowledge, there are no events or circumstances in his personal background
or associations with others which would result in any casino or gaming
authority's refusal to grant a casino or gaming license to Executive, the
Company or its subsidiaries.
19. Interest. Any funds not paid to Executive within thirty
(30) days after they are due under this Agreement shall accrue interest at the
prime rate published in the Wall Street Journal from time to time, from the date
such payments were due until the date they are paid by the Company.
20. Arbitration and Litigation. In the event the Company
terminates Executive by reason of his Disability or for Cause and Executive
disputes the accuracy of such assertion of Disability or Cause, or in the event
Executive terminates his employment for Good Reason and the Company disputes the
accuracy of such assertion of Good Reason, the accuracy of such assertion shall
be submitted to arbitration in accordance with the then current commercial
arbitration rules of the American Arbitration Association ("Association") or its
successor, provided Executive or the Company files a written demand for
arbitration at a regional office of the Association within thirty (30) days
following the Date of Termination. During the pendency of the arbitration
proceeding, Executive will continue to be paid his Salary and receive the other
compensation benefits set forth in Section 5. In the event the arbitrator finds
that the termination by the Company was not for Disability or not for Cause, as
applicable, or that the termination by Executive was for Good Reason, Executive
shall not be entitled to reinstatement, but shall be entitled to the benefits of
Section 8(c) and in either case payment of his reasonable legal expenses in such
arbitration.
21. Representation of the Company. The Company represents that
the execution and performance of this Agreement will not result in a breach of
any of the terms and conditions of any employment or other agreement between the
Company and any other person or party.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date indicated on the first page of this Agreement.
LAS VEGAS ENTERTAINMENT NETWORK,
INC. (the "Company")
By:
Title:
xxxv.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("Executive")
Approved by the
Company's Compensation Committee
By:
By:
xxxv.
LAS VEGAS COMMUNICATIONS CORPORATION
EMPLOYMENT AGREEMENT
WITH
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
This Employment Agreement (this "Agreement"), by and between
Las Vegas Communications Corporation, a Delaware corporation (the "Company"),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive"), effective as of October 1, 1997, was
authorized by the Compensation Committee ("Committee") of the Company's Board of
Directors (the "Board") on October ___, 1997.
RECITALS
A. The Committee desires to provide for the continued
employment of Executive and to make certain changes in Executive's employment
arrangements with the Company which the Committee has determined will reinforce
and encourage the continued attention and dedication of Executive to the
Company's business as a member of the Company's management. Executive is willing
to commit himself to continue to serve the Company on the terms and conditions
herein provided.
B. The Company and Executive previously entered into an Employment Agreement,
dated March 1, 1995 (the "Prior Employment Agreement").
C. The Company and Executive wish to terminate the Prior Employment Agreement
and to enter into this Agreement pursuant to the terms and conditions
stated herein.
AGREEMENT
In consideration of the premises and the respective covenants
and agreements of the parties herein contained, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to continue to employ Executive, and
Executive hereby agrees to continue to serve the Company, pursuant to the
terms and conditions set forth herein.
2. Term. The term of employment of Executive by the Company
pursuant to the terms of this Agreement will commence on October 1, 1997 (the
"Effective Date"), and end on September 30, 2002 (the "Initial Term"); provided,
however, that if the Company fails to notify Executive in writing on or before
October 1, 2001 of its desire to have this Agreement expire at the end of its
Initial Term, this Agreement shall be automatically extended for another term
(the "Subsequent Term") ending on the sixth anniversary of the date upon which
Executive receives written notice of the Company's election to terminate this
Agreement. Such notice may be given at anytime during the term of this Agreement
and shall be effective (i) on the fifth anniversary of this Agreement if given
on or before October 1, 2001, or (ii) the sixth anniversary of the date the
termination notice is given to Executive, if given after October 1, 2001. This
Agreement shall terminate at the end of the Initial Term or Subsequent Term, as
applicable (the "Expiration Date"), unless sooner terminated pursuant to Section
7 hereof. The period from the Effective Date to the date this Agreement is
terminated is referred to herein as the "Employment Period."
xxxv.
3. Duties.
(a) The Executive shall be elected Chairman of the Board and Chief Executive
Officer of the Company and, in such capacity, he shall supervise and direct
the entire operation of the Company and perform such additional duties
related to the business and affairs of the Company as may be delegated to
him from time to time by the Board; provided that Executive's duties and
responsibilities shall be commensurate with and similar to those generally
exercised and assigned during the 90-day period immediately preceding the
Effective Date.
(b) During the Employment Period, and excluding any periods of vacation and
sick leave to which Executive is entitled, Executive shall devote his
reasonable attention and time during normal business hours to the business
and affairs of the Company and use his reasonable best efforts to perform
faithfully, fully, competently and efficiently the duties and
responsibilities assigned to him hereunder. During the Employment Period,
it shall not be a violation of this Agreement for Executive to (i) serve on
corporate, civil or charitable boards or committees, (ii) manage personal
investments and/or business affairs, or (iii) to engage in other business
or profit oriented ventures or enterprises so long as such activities do
not materially interfere with the performance of Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
4. Place of Performance. During the Employment Period,
Executive shall be based and his services shall be performed at the Company's
principal executive office. Executive agrees and acknowledges that his services
hereunder may require reasonable travel in connection with the Company's
business to an extent consistent with Executive's present business travel
obligations.
5. Compensation and Related Matters.
(a) Salary. As of the Effective Date, Executive's minimum base salary
("Salary") shall be Two Hundred Thousand Dollars ($200,000) per annum,
payable as nearly as possible in equal monthly or semi-monthly installments
in accordance with the payroll practices of the Company which may be in
effect from time to time and subject to such withholding as may be required
by law. Executive may elect to defer payment of any portion or all of his
Salary or any other compensation payable hereunder pursuant to the
provisions of any deferred compensation plan that the Company may adopt
from time to time.
(b) Employee Benefit Plans. Executive shall participate in any incentive
compensation plan, pension or profit sharing plan, stock purchase or stock
option plan, group health, disability, life, dental or hospitalization
plans, and other benefit plans maintained by the Company for its executive
employees in accordance with the terms and conditions thereof; provided,
that Executive shall be eligible to and shall participate in such benefit
plans.
(c) Annual Bonus. In addition to the compensation set forth above, the Company
may pay to Executive, for each of the Company's fiscal years ending with or
within the Employment Period, an annual or other periodic bonus (the
"Bonus") in such amounts as the Compensation Committee shall determine in
its sole discretion based on the Company's earnings and performance and
Executive's contributions thereto.
(d) Expenses. During the Employment Period, the Company shall promptly
reimburse Executive for all reasonable expenses incurred by Executive in
performing his services hereunder, including, but not limited to, telephone
and telefax expenses, entertainment expenses, travel expenses, and all
living expenses while away from home on business, provided that
xxxv.
all such expenses are incurred and accounted for in accordance with the policies
and procedures established by the Company.
(e) Profit Participation. For each fiscal year of the Company ending with or
within the Employment Period, Executive shall receive a lump sum cash
payment equal to five percent (5%) of the Company's "EBITDA Profits"
reported for such fiscal year. For purposes of this Agreement, EBITDA
Profits shall mean the Company's net earnings for the fiscal year,
determined by excluding any expense associated with interest, income taxes,
depreciation or amortization. Such payment shall be made to Executive by
the Company within thirty (30) days after the date the EBITDA Profits are
finally determined by the Company's auditors and reported to the Company.
6. Directorship. Executive agrees to serve as a director of the Company if
requested to do so by the Board. The Company shall indemnify Executive for
any and all liability (including attorneys' fees) incurred by Executive in
connection with serving the Company in any and all such capacities
(including in his capacity as an officer and/or employee of the Company),
to the maximum extent permitted by applicable state law. Executive shall be
entitled to receive such additional compensation for serving on the
Company's Board of Directors as the Board may approve. Executive further
agrees that, upon termination of his employment for any reason, he will
resign any directorship held with respect to the Company, effective as of
the Date of Termination (as defined in Section 7(g)).
7. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement only under the following circumstances set forth
in Sections 7(a), (b), (c), (d) and (e) below:
(a) Death. Executive's employment hereunder shall terminate upon his death.
(b) Disability. If the Company determines in good faith that the Disability (as
defined below) of Executive has occurred, the Company may give Executive
written notice of its intention to terminate Executive's employment. If the
Company delivers written notice of termination to Executive pursuant to the
preceding sentence, and Executive shall have been absent from his duties
hereunder on a full-time basis for the entire period of one-hundred eighty
(180) consecutive days, and within thirty (30) days after written notice of
termination is received by Executive, Executive shall not have returned to
full-time performance of his duties hereunder, then Executive's employment
hereunder shall terminate effective on the 30th day after such notice of
termination is received by Executive. For purposes of this Agreement,
"Disability" means sickness or physical or mental disability which renders
Executive unable to devote his full time and attention to performing his
duties under this Agreement for one hundred eighty (180) or more
consecutive days.
(c) Cause. The Company may terminate Executive's employment hereunder for
Cause. For purposes of this Agreement, "Cause" means (i) the conviction of
Executive of a felony, provided such conviction is a final determination
and not subject to further appeal, or (ii) the willful breach of any
material provision of this Agreement by Executive (other than any such
failure resulting from his incapacity due to physical or mental illness),
and which is not remedied within fifteen (15) days after a notice of
termination is received by Executive that specifically identifies, as
required below, the facts and circumstances leading the Company to believe
that Executive has willfully violated this Agreement. For purposes of this
subsection, no act, or failure to act, on Executive's part shall be
considered "willful" unless done, or omitted to be done, by Executive in
bad faith and without reasonable belief that his action or omission was in
the best interests of the Company. Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for Cause without (i reasonable
notice to Executive setting forth the reasons, facts and circumstances for
xxxi.
the Company's intention to terminate for Cause, (ii) an opportunity for
Executive, together with his counsel, to be heard before the Board of Directors
and (iii) delivery to Executive of a notice of termination from the Board of
Directors finding that in their good faith opinion Executive was guilty of the
conduct set forth above, and specifying the particulars thereof in reasonable
detail.
(d) Termination by Executive for Good Reason. Executive may terminate his
employment hereunder for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean, without Executive's express written consent, the
occurrence (a "Change") of any of the following circumstances:
(i) a significant adverse alteration or diminution in the nature of Executive's
duties or responsibilities from those in effect immediately prior to such
Change, other than insubstantial actions that are fully corrected within
thirty (30) days after receipt of written notice from Executive; or
(ii) any failure by the Company to comply substantially with any of the
provisions of Section 5 of this Agreement, other than insubstantial actions
that are fully corrected within thirty (30) days after receipt of written
notice from Executive; or
(iii)any purported termination by the Company of Executive's employment
otherwise than as expressly permitted by this Agreement, including, but not
limited to, any purported termination which is not effected pursuant to a
Notice of Termination satisfying the requirements of Section 7(f) hereof
(and, if applicable, the requirements of Section 7(c) hereof) (for purposes
of this Agreement, no such purported termination shall be effective); or
(iv) any failure by the Company to comply with any material provision of this
Agreement that has not been cured within thirty (30) days after notice of
such noncompliance has been given by Executive to the Company; or
(v) The Board of Directors shall authorize and direct Executive to cause the
Company to enter into a transaction which would, in Executive's considered
judgment, materially injure the reputation and business standing of the
Company, after Executive has provided to the Board in writing his reasons
why such transaction should not be effected and why it would result in such
material injury.
Executive's right to terminate his employment pursuant to this Section 7(d)
shall not be affected by his incapacity due to physical or mental illness.
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good Reason hereunder.
(e) Expiration of Term. This Agreement shall terminate upon the Expiration Date
as set forth in Section 2, if not earlier terminated pursuant to the
provisions of this Section 7.
(f) Notice of Termination. Any termination of Executive's employment by the
Company or by Executive (other than a termination pursuant to subsections
(a) and (e) of this Section 7) shall be communicated by written "Notice of
Termination" to the other party. For purposes of this Agreement, a Notice
of Termination shall mean a notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis
for termination of Executive's employment under the
xxxx.
provision so indicated, and (iii) if the Date of Termination (as defined in
Section 7(g)) is other than the date of receipt of such notice, specifies the
termination date (which date shall not be less than fifteen (15) days after the
receipt of such notice). The failure by Executive or the Company to set forth in
the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause, as the case may be, shall not waive any right
of Executive or the Company, as the case may be, hereunder or preclude Executive
or the Company, as the case may be, from asserting such fact or circumstance in
enforcing his or its rights hereunder.
(g) Date of Termination. "Date of Termination" shall mean (i) if Executive's
employment is terminated by his death, the date of his death, (ii) if
Executive's employment is terminated pursuant to subsection (b) hereof
(relating to Disability), thirty (30) days after Notice of Termination is
received by Executive (provided that Executive shall not have returned to
the performance of his duties on a full-time basis during such thirty
(30)-day period), (iii) if Executive's employment is terminated pursuant to
subsection (c) hereof (relating to Cause), fifteen (15) days after Notice
of Termination is received by Executive, (iv) if Executive's employment is
terminated pursuant to subsection (d) hereof (relating to termination for
Good Reason), thirty (30) days after the Notice of Termination is received
by the Company, (v) if Executive's employment is terminated under
subsection (e) hereof on the Expiration Date as set forth in Section 2, and
(vi) if Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination.
8. Compensation Upon Termination.
(a) If Executive's employment is terminated by reason of his death or
Disability pursuant to Section 7(a) or (b), this Agreement shall terminate
without further obligations to Executive's legal representatives under this
Agreement; provided, however, that Executive or his legal representatives
shall receive
(i) all compensation and obligations accrued or earned by Executive through the
Date of Termination;
(ii) any accrued vacation pay not yet paid by the Company;
(iii)a lump sum cash payment equal to the amount of Salary that Executive would
have been entitled to receive pursuant to Section 5(a) hereof from the Date
of Termination through and including the Expiration Date if Executive had
been employed by the Company through the Expiration Date (with the
Expiration Date determined by assuming that a Notice of Termination was
given to Executive on the Date of Termination); and
(iv) a lump sum cash payment equal to the amount that the Executive would have
received pursuant to Section 5(e) had he been employed as of the end of the
Company's fiscal year which ends immediately following the Date of
Termination resulting from Executive's death or Disability.
All of the amounts set forth in clauses (i), (ii) and (iii) shall be paid to
Executive, Executive's estate or Executive's beneficiaries, as applicable, in a
lump sum cash payment within ninety (90) days of the Date of Termination. The
amount set forth in clause (iv) shall be paid within thirty (30) days of the
date the EBITDA Profits are finally determined. Anything in this Agreement to
the contrary notwithstanding, Executive or Executive's family, as the case may
be, shall be entitled to receive benefits at least equal to the most favorable
benefits provided by the Company to families of disabled or deceased employees
of the Company, as the case may be, under such plans relating to benefits for
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families of disabled or deceased employees of the Company, as the case may be,
if any, in accordance with the most favorable practices of the Company in effect
at any time during the Employment Period.
(b) If Executive's employment shall be terminated by the Company for Cause, or
by Executive other than for Good Reason, or should this Agreement terminate
pursuant to Section 7(e), the Company shall pay Executive all compensation
and obligations accrued or earned by Executive through the Date of
Termination and any accrued vacation pay not yet paid by the Company (the
"Accrued Compensation"). All such Accrued Compensation shall be paid to
Executive in a lump sum in cash within ninety (90) days of the Date of
Termination. In addition, in the event of a termination under Section 7(e),
Executive shall receive a cash payment equal to the amount specified in
Section 5(e) for the Company's fiscal year ending immediately following the
Date of Termination, prorated by a percentage, the numerator of which is
the number of days during such fiscal year that Executive was employed by
the Company, and the denominator of which is the total number of days in
such fiscal year. Such amount shall be paid within thirty (30) days
following the final determination of the Company's EBITDA Profits for such
fiscal year.
Otherthan the payments set forth in this Section 8(b), the Company shall have
no further obligation to Executive under this Agreement and Executive
acknowledges and agrees that this Section 8(b) states his entire and
exclusive rights, entitlements and remedies against the Company, its
successors, assigns, affiliates, employees and representatives in
connection with the termination of his employment by the Company for Cause
or by Executive other than for Good Reason.
(c) If (i) in breach of this Agreement, the Company shall terminate Executive's
employment other than pursuant to Section 7(a) (relating to death), Section
7(b) (relating to Disability), or Section 7(c) (relating to Cause) (it
being understood that a purported termination pursuant to Section 7(b) or
7(c) hereof which is disputed and finally determined not to have been
proper shall be a termination by the Company in breach of this Agreement),
or (ii) Executive shall terminate his employment for Good Reason, then
(A) the Company shall make a lump sum payment of cash to Executive equal to the
sum of the amounts set forth in Sections 8(a)(i), (ii) and (iii) within
ninety (90) days of the Date of Termination;
(B) the Company shall continue to make the payments required under Section 5(e)
(relating to the Company's EBITDA Profits) for each fiscal year of the
Company ending with or within the period commencing with the Date of
Termination and ending on the Expiration Date (with the Expiration Date
determined by assuming that a Notice of Termination was given to Executive
on the Date of Termination);
(C) through the Expiration Date, the Company shall continue all other benefits
to Executive and/or Executive's family at least equal to those benefits
which would have been provided to Executive and/or Executive's family in
accordance with the plans, programs, practices and policies referred to in
this Agreement if Executive had been employed by the Company through the
Expiration Date (with the Expiration Date determined by assuming that
Executive received a Notice of Termination on the Date of Termination);
(D) any stock options to purchase stock of the Company held by Executive on the
Date of Termination which are not at such time currently exercisable shall,
as of that date, automatically become exercisable; and
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(E) all shares of stock of the Company held by Executive under any restricted
stock plan which are still subject to restrictions on the Date of
Termination shall, as of that date, automatically become free of all
restrictions.
Other than the payment of the amounts set forth above in this
Section 8(c), the Company shall have no further obligations to Executive under
this Agreement and Executive acknowledges and agrees that this Section 8(c)
states his entire and exclusive rights, entitlements and remedies against the
Company, its successors, assigns, affiliates, employees and representatives in
connection with the termination by the Company of his employment under the
circumstances described in Section 8(c)(i) or by Executive for Good Reason under
Section 8(c)(ii).
9. Nondisclosure. Executive agrees not to disclose, either
while in the Company's employ or at any time thereafter, to any person not
employed on a full-time basis by the Company or its affiliates, or not engaged
to render services to the Company or its affiliates, except with the prior
written consent of an officer authorized to act in the matter by the Board, any
confidential information obtained by Executive while in the employ of the
Company, provided, however, that this provision shall not preclude Executive
from the use or disclosure of information known generally to the public or of
information not treated as confidential by the Company or from disclosure
required by law or court order. The agreement made in this Section 9 shall be in
addition to, and not in limitation or derogation of, any obligations otherwise
imposed by law or by separate agreement upon Executive in respect of
confidential information of the Company.
10. Successors; Binding Agreement.
(a) The Company will use its best efforts to require any and all successors to
all or substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to Executive, 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. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to terminate his employment for Good
Reason. As used in this Agreement, "Company" shall mean the Company as
herein before defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Section 10 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law. Executive agrees and acknowledges
that the provisions of this Section 10 do not apply to a merger in which
the Company is the surviving corporation (it being understood that the
Company's obligations hereunder would be unaffected thereby).
(b) Since this Agreement is based upon the unique abilities of Executive, he
shall have no right to delegate his duties under this Agreement without the
written consent of the Company.
(c) This Agreement and all rights of Executive hereunder shall inure to the
benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Executive should die while any
amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's designee or, if
there be no such designee, to Executive's estate.
11. Notice. For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been
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duly given when personally delivered or on the day following delivery to a
reputable overnight courier, postage prepaid, addressed as follows:
If to Executive: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: Las Vegas Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
or to such other address as any party may have furnished to the other party in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by Executive and the Company's 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. 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 set forth expressly in this Agreement. Except as provided in Section 20,
any dispute between the parties shall be submitted to arbitration, the venue for
which shall be Los Angeles, California, unless otherwise agreed to in writing by
the parties. In the event of any proceeding brought to enforce this Agreement,
the prevailing party shall be entitled to costs of suit and attorneys' fees, in
addition to any other remedies available. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of California without regard to its conflicts of law principles.
14. Validity. The invalidity or unenforceability of any provision or 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.
15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.
16. Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto in respect of any subject matter contained
herein and supersedes all prior severance or other agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereto
and, except as set forth in the immediately preceding clause, any prior
agreement of the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled, including, without limitation, the
Prior Employment Agreement.
17. Expenses. The Company shall reimburse Executive for any legal expenses
incurred in preparing this Agreement and any related agreements.
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18. Executive's Representations. Executive represents that, to the best of his
knowledge, there are no events or circumstances in his personal background
or associations with others which would result in any casino or gaming
authority's refusal to grant a casino or gaming license to Executive, the
Company or its subsidiaries.
19. Interest. Any funds not paid to Executive within thirty
(30) days after they are due under this Agreement shall accrue interest at the
prime rate published in the Wall Street Journal from time to time, from the date
such payments were due until the date they are paid by the Company.
20. Arbitration and Litigation. In the event the Company
terminates Executive by reason of his Disability or for Cause and Executive
disputes the accuracy of such assertion of Disability or Cause, or in the event
Executive terminates his employment for Good Reason and the Company disputes the
accuracy of such assertion of Good Reason, the accuracy of such assertion shall
be submitted to arbitration in accordance with the then current commercial
arbitration rules of the American Arbitration Association ("Association") or its
successor, provided Executive or the Company files a written demand for
arbitration at a regional office of the Association within thirty (30) days
following the Date of Termination. During the pendency of the arbitration
proceeding, Executive will continue to be paid his Salary and receive other
compensation benefits set forth in Section 5. In the event the arbitrator finds
that the termination by the Company was not for Disability or not for Cause, as
applicable, or that the termination by Executive was for Good Reason, Executive
shall not be entitled to reinstatement, but shall be entitled to the benefits of
Section 8(c) and in either case payment of his reasonable legal expenses in such
arbitration.
21. Representation of the Company. The Company represents that
the execution and performance of this Agreement will not result in a breach of
any of the terms and conditions of any employment or other agreement between the
Company and any other person or party.
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IN WITNESS WHEREOF, the parties have executed this Agreement
on the date indicated on the first page of this Agreement.
LAS VEGAS COMMUNICATIONS
CORPORATION (the "Company")
By:
Title:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("Executive")
Approved by the
Company's Compensation Committee
By:
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