1
Exhibit 99.3
EMPLOYMENT AGREEMENT
This Agreement is made as of the 1st day of June, 1999, by and between WMS
INDUSTRIES INC., a Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called the "Corporation") and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual residing at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employee").
W I T N E S S E T H:
WHEREAS, the Corporation desires to employ Employee and Employee is
willing to accept such employment on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Employment by Corporation. The Corporation hereby agrees to employ
Employee to perform such duties on behalf of the Corporation and its affiliates
as the Chairman of the Board and Chief Executive Officer or such officer as may
subsequently be designated by the Board of Directors of the Corporation
("Management"), may from time to time determine, including without limitation
duties with respect to regulatory compliance and governmental affairs relating
to the design, development and manufacture for the Corporation of gaming devices
("Game[s]") to be manufactured and sold by the Corporation or by one or more of
other corporations under common control with the Corporation (its "Affiliates").
The primary assignment of Employee shall be Vice President, Assistant General
Counsel and Chief Compliance Officer.
2. Employee's Acceptance of Employment. Employee hereby accepts such
employment and agrees that throughout the period of his employment hereunder he
will devote his full time, attention, knowledge and skills, faithfully,
diligently and to the best of his ability, in furtherance of the business of the
Corporation and its Affiliates, he will perform the duties assigned to him
pursuant to Paragraph 1 hereof, subject, at all times, to the direction and
control of Management and he will do such reasonable traveling as may be
required of him in the performance thereof.
Employee shall at all times be subject to, observe and carry out such
rules, regulations, policies, directions and restrictions as the Corporation
shall from time to time establish. During the period of his employment by the
Corporation, Employee agrees to be bound by the Corporation's Ethics and
Conflicts of Interest Policy and any amendments adopted thereto, a copy of which
Employee hereby acknowledges he has received and read, and Employee agrees that
he shall not, without the prior written approval of Management, directly or
indirectly, accept employment or compensation from or perform services of any
nature for, any business enterprise other than the Corporation and its
Affiliates and such enterprises previously disclosed to the Corporation in
writing.
1
2
3. Term. Employee shall be employed for a term ("Term") of one (1) year
commencing on the date hereof; provided, however, that during Employee's
employment hereunder, such term shall be deemed to be automatically extended
from time to time for an additional one (1) year period such that the term of
Employee's employment shall not be less than one (1) year nor greater than one
(1) year, unless his employment is terminated voluntarily by Employee or by the
Corporation for cause in accordance with Paragraph 6 hereof, in which case such
term shall terminate immediately. Each year of the Term is hereafter referred to
as an "Employment Year."
4. Compensation/Benefits.
4.1 The Corporation will pay to Employee as compensation for his
services hereunder a salary of One Hundred Twenty Thousand Dollars ($120,000).
Such salary may be adjusted from time to time as determined by Management and is
to be payable in equal installments no less frequently than semimonthly.
Employee shall also be entitled to receive an annual discretionary bonus in an
amount of up to thirty percent (30%) of Employee's then current base salary.
Such bonus shall be within the sole discretion of Management and will be based
upon the extent to which Employee achieves mutually agreed corporate and
personal performance criteria and objectives during the employment year;
two-thirds (2/3) of such bonus calculation shall be based upon Employee's
personal performance and one-third (1/3) of such bonus shall be based upon
corporate performance criteria. Employee may be included, in the sole discretion
of Management, in such other profit sharing, incentive or other bonus
arrangements which may be in effect from time to time.
4.2 Employee shall be entitled to participate during the Term, to
the extent he is eligible under the terms and conditions thereof, in any
pension, retirement, disability, hospitalization, insurance, medical service, or
other employee benefit plan which is generally available to all employees of the
Corporation (including Execu-Care supplemental medical and life insurance
benefits) and which may be in effect from time to time during the period of his
employment. The Corporation shall be under no obligation to institute or
continue the existence of any such employee benefit plan.
5. Business Expenses. The Corporation shall reimburse Employee for all
authorized expenses reasonably incurred by him in accordance with the
Corporation's "Travel and Entertainment Policy and Procedure" and any amendment
thereof that the Corporation may adopt during his employment.
6. Termination. In addition to all other rights and remedies which the
parties may have under applicable law, Employee and the Corporation hereby
agree: that the Corporation may terminate this Agreement and the services of
Employee, effective upon the occurrence of any of the following events: (i) a
material failure by Employee to perform his obligations under this Agreement;
(ii) the death of Employee or his disability for a period of three (3)
consecutive months; (iii) Employee fails to follow the Corporation's "Ethics and
Conflicts of Interest Policy," and any amendment thereof that the Corporation
may adopt during his employment; or (iv) in the event that Employee shall act,
whether with respect to his employment or otherwise, in a manner which is in
violation of the criminal laws of the United States or any State or subdivision
thereof
2
3
(excluding minor violations) or which is reasonably likely to result in the loss
of a gaming license held by the Corporation or by any Affiliate or in such
entity's inability to become so licensed.
7. Non-Competition. In consideration of the Corporation's entering into
this Agreement:
7.1 Employee agrees that during the Term hereof and, in the event
Employee voluntarily terminates his employment or the Corporation terminates
Employee's employment for cause, prior to the expiration of six (6) months
following such termination of Employee's employment, he will not directly or
indirectly own, manage, operate, join, control, participate in, perform any
services for, invest in, or otherwise be connected with, in any manner, whether
as an officer, director, employee, consultant, partner, investor or otherwise,
any business entity which is engaged in the design, manufacture and/or sale of
any gaming devices or any business entity which is engaged in any other business
in which the Corporation or any of its Affiliates is engaged. Nothing herein
contained shall be deemed to prohibit Employee from investing his funds in
securities of a company if the securities of such company are listed for trading
on a national stock exchange or traded in the over-the-counter market and
Employee's holdings therein represent less than five (5) percent of the total
number of shares or principal amount of other securities of such company
outstanding.
7.2 Employee agrees that Employee will not, during the Term hereof
or prior to the expiration of one (1) year following the termination of the
Employee's employment for any reason, without the written consent of the
Corporation, directly or indirectly, by action alone or in concert with others,
induce or influence, or seek to induce or influence any person who is engaged by
the Corporation or any of its Affiliates as an employee, agent, independent
contractor or otherwise, to terminate his employment or engagement, nor shall
Employee, directly or indirectly, through any other person, firm or corporation,
employ or engage, or solicit for employment or engagement, or advise or
recommend to any other person or entity that such person or entity employ or
engage or solicit for employment or engagement, any person or entity employed or
engaged by the Corporation.
8. Confidentiality Agreement.
8.1 As used herein, the term "Confidential Information" shall mean
the terms of this Employment Agreement and any and all information of the
Corporation and of its Affiliates (for purposes of Paragraphs 8, 9 and 10 of
this Agreement, the Corporation's Affiliates shall be deemed included within the
meaning of "Corporation"), including, but not limited to, all data,
compilations, programs, devices, strategies, or methods concerning or related to
(i) the Corporation's finances, financial condition, results of operations,
employee relations, amounts of compensation paid to officers and employees and
any other data or information relating to the internal affairs of the
Corporation and its operations; (ii) the terms and conditions (including prices)
of sales and offers of sales of the Corporation's products and services; (iii)
the terms, conditions and current status of the Corporation's agreements and
relationship with any customer or supplier; (iv) the customer and supplier lists
and the identities and business preferences of the Corporation's actual and
prospective customers and suppliers or any employee or agent thereof with whom
the Corporation communicates; (v) the trade secrets, manufacturing and operating
3
4
techniques, price data, costs, methods, systems, plans, procedures, formulas,
processes, hardware, software, machines, inventions, designs, drawings, artwork,
blueprints, specifications, tools, skills, ideas, and strategic plans possessed,
developed, accumulated OR acquired by the Corporation; (vi) any communications
between the Corporation, its officers, directors, shareholders, or employees,
and any attorney retained by the Corporation for any purpose, or any person
retained or employed by such attorney for the purpose of assisting such attorney
in his or her representation of the Corporation; (vii) any other information and
knowledge with respect to all gaming developed or in any stage of development by
the Corporation; (viii) the abilities and specialized training or experience of
others who as employees or consultants of the Corporation during the Employee's
employment have engaged in the design or development of any such products; and
(ix) any other matter or thing, whether or not recorded on any medium, (a) by
which the Corporation derives actual or potential economic value from such
matter or thing being not generally known to other persons or entities who might
obtain economic value from its disclosure or use, or (b) which gives the
Corporation an opportunity to obtain an advantage over its competitors who do
not know or use the same.
8.2 Employee acknowledges and agrees that the Corporation is engaged
in the highly competitive gaming device business and has expended, or will
expend, significant sums of money and has invested, or will invest, a
substantial amount of time to develop and maintain the secrecy of the
Confidential Information. The Corporation has thus obtained, or will obtain, a
valuable economic asset which has enabled, or will enable, it to develop an
extensive reputation and to establish long-term business relationships with its
suppliers and customers. If such Confidential Information were disclosed to
another person or entity or used for the benefit of anyone other than the
Corporation, the Corporation would suffer irreparable harm, loss and damage.
Accordingly, Employee acknowledges and agrees that, unless the Confidential
Information becomes publicly known through legitimate origins not involving an
act or omission by Employee:
(i) the Confidential Information is, and at all times hereafter
shall remain, the sole property of the Corporation;
(ii) Employee shall use his best efforts and the utmost diligence to
guard and protect the Confidential Information from disclosure to
any competitor, customer or supplier of the Corporation or any other
person, firm, corporation or other entity;
(iii) unless the Corporation gives Employee prior express written
permission, during his employment and thereafter, Employee shall not
use for his own benefit, or divulge to any competitor or customer or
any other person, firm, corporation, or other entity, any of the
Confidential Information which Employee may obtain, learn about,
develop or be entrusted with as a result of Employee's employment by
the Corporation; and
4
5
(iv) except in the ordinary course of the Corporation's business,
Employee shall not seek or accept any Confidential Information from
any former, present or future employee of the Corporation.
8.3 Employee also acknowledges and agrees that all documentary and
tangible Confidential Information including, without limitation, such
Confidential Information as Employee has committed to memory, is supplied or
made available by the Corporation to the Employee solely to assist him in
performing his services under this Agreement. Employee further agrees that after
his employment with the Corporation is terminated for any reason:
(i) Employee shall not remove from the property of the Corporation
and shall immediately return to the Corporation, all documentary or
tangible Confidential Information in his possession, custody, or
control and not make or keep any copies, notes, abstracts,
summaries, tapes or other record of any type of Confidential
Information; and
(ii) Employee shall immediately return to the Corporation any and
all other property of the Corporation in his possession, custody or
control, including, without limitation, any and all keys, security
cards, passes, credit cards and marketing literature.
9. Invention Disclosure. Employee agrees to disclose to the Corporation
promptly and fully all ideas, inventions, discoveries, developments or
improvements ("Inventions") that may be made or conceived by him and all
"Intellectual Material" (as defined below) that may be created or developed by
him (whether such Inventions or "Intellectual Material" are developed solely by
him or jointly with others) either during his employment by the Corporation or
during a period of one (1) year after the termination of his employment with the
Corporation which either (i) in any way is connected with or related to the
actual or contemplated business, work, research or undertakings of the
Corporation or (ii) results from or is suggested by any task, project or work
that he may do for, in connection with, or on behalf of the Corporation.
Employee agrees that such Inventions and "Intellectual Material" shall become
the sole and exclusive property of the Corporation and Employee hereby assigns
to the Corporation all of his rights to any such Inventions and "Intellectual
Material." As used herein, "Intellectual Material" shall include, but shall not
be limited to, ideas, titles, themes, production ideas, methods of presentation,
artistic renderings, sketches, plots, music, lyrics, dialogue, phrases, slogans,
catch words, characters, names and similar literary, dramatic and musical
material, trade names, trademarks and service marks and all copyrightable
expressions in audio visual works, computer software, electronic circuitry and
all mask works for integrated circuits. With respect to Inventions and
Intellectual Material, Employee shall during the period of his employment
hereunder and at any time and from time to time hereafter (a) execute all
documents requested by the Corporation for vesting in the Corporation the entire
right, title and interest in and to the same, (b) execute all documents
requested by the Corporation for filing and prosecuting such applications for
patents, trademarks and/or copyrights as the Corporation, in its sole
discretion, may desire to prosecute, and (c) give the Corporation all assistance
it reasonably requires, including the giving of testimony in any suit, action or
proceeding, in order to obtain, maintain and protect the Corporation's right
therein and thereto. If any such assistance is required following the
termination of Employee's
5
6
employment with the Corporation, the Corporation shall reimburse Employee for
his lost wages or salary and the reasonable expenses incurred by him in
rendering such assistance. Anything contained in this paragraph to the contrary
notwithstanding, this paragraph does not apply to an Invention or Intellectual
Material for which no equipment, supplies, facilities, or trade secret
information of the Corporation was used and which was developed entirely on the
Employee's own time, unless the Invention or Intellectual Material relates: (i)
to the business of the Corporation, (ii) to the Corporation's actual or
demonstrably anticipated research or development, or (iii) the Invention or
Intellectual Material results from any work performed by the Employee for the
Corporation.
10. Remedies. Employee acknowledges and agrees that the business of the
Corporation is highly competitive and that the provisions of Paragraphs 7, 8 and
9 are reasonable and necessary for the protection of the Corporation and its
Affiliates and that any violation of such covenants would cause immediate,
immeasurable and irreparable harm, loss and damage to the Corporation not
adequately compensable by a monetary award. Accordingly, the Employee agrees,
without limiting any of the other remedies available to the Corporation, that
any violation of said covenants, or any one of them, may be enjoined or
restrained by any court of competent jurisdiction, and that any temporary
restraining order or emergency, preliminary or final injunctions may be issued
by any court of competent jurisdiction, without notice and without bond. In the
event any proceedings are commenced by the Corporation against Employee for any
actual or threatened violation of any of said covenants and if the Corporation
prevails in such litigation, then, Employee shall be liable to the Corporation
for, and shall pay to the Corporation, all costs and expenses of any kind,
including reasonable attorneys' fees, which the Corporation may incur in
connection with such proceedings.
11. Change of Control. If at any time during the term of this Agreement
(i) any individuals who presently constitute the Board of Directors of the
Corporation, or who have been recommended for election to the Board of the
Corporation by two-thirds of the Board of the Corporation consisting of
individuals who are either presently on such Board or such recommended
successors cease for any reason to constitute at least a majority of such Board
(such event being hereafter referred to as a "Change of Control"), and (ii)
thereafter, the Corporation breaches its obligations to Executive under this
Agreement (iii) Executive gives written notice to the Corporation within 60 days
after such breach of his election to terminate his employment hereunder, the
Corporation shall pay to Executive within 15 days after Executive's delivery of
such notice, as severance pay and liquidated damages, in lieu of any other
rights or remedies which might otherwise be available to him under this
Agreement, and without mitigation of any kind or amount, whether or not
Executive shall seek other employment, a lump sum equal in amount to the lesser
of (i) the annual base salary payable to Executive pursuant to subsection 4.1 of
this Agreement or (ii) the maximum amount which could be payable to Executive
without any portion of such amount being subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended. In addition, all
unexpired options to purchase securities of the Corporation granted to Executive
before the Change of Control shall, if unvested, vest fully on the date of the
Change of Control, notwithstanding any vesting provisions of such options. The
payments provided for this Section 11 shall be paid in full, without discount to
present value.
6
7
12. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the matters set forth herein and no amendment
or modification hereof shall be valid or binding unless made in writing and
signed by both parties hereto.
13. Notices. Any notice, required, permitted or desired to be given
pursuant to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or sent by
certified mail, return receipt requested, postage and fees prepaid as follows:
if to the Corporation at:
its address set forth above,
Attention: Executive Vice President, General Manager and
Chief Operating Officer
with a copy to:
Vice President & General Counsel
WMS Industries Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and, if to Employee, at his address set forth above.
Either of the parties hereto may at any time and from time to time change
the address to which notice shall be sent hereunder by notice to the other party
given as provided herein. The date of the giving of any notice hereunder shall
be the date delivered or if sent by mail, shall be the date of the posting of
the mail.
14. Non-Assignability. Neither this Agreement nor the right to receive any
payments hereunder may be assigned by Employee. This Agreement shall be binding
upon Employee and inure to the benefit of his heirs, executors and
administrators and be binding upon the Corporation and inure to the benefit of
its successors and assigns.
15. Choice of Law And Forum. This Agreement shall be governed, interpreted
and construed under the laws of the State of Illinois without regard to its
conflict of law principles. The parties agree that any dispute or litigation
arising in whole or in part hereunder shall, at the option of the Corporation,
be litigated in any state or Federal court of competent subject matter
jurisdiction sitting in ▇▇▇▇ County, Illinois, to the jurisdiction of which and
venue in which Employee irrevocably consents.
16. Waiver. No course of dealing nor any delay on the part of any party in
exercising any rights hereunder shall operate as a waiver of any such rights. No
waiver of any default or breach of this Agreement shall be deemed a continuing
waiver or a waiver of any other breach or default.
17. Severability. If any provision of this Agreement including any
paragraph, sentence, clause or part thereof, shall be deemed contrary to law or
invalid or unenforceable in any respect by a court of competent jurisdiction,
the remaining provisions of such paragraph, sentence, clause or part thereof
shall not be affected, but shall, subject to the discretion of such
7
8
court, remain in full force and effect and any invalid and unenforceable
provisions shall be deemed, without further action on the part of the parties
hereto, modified, amended and limited to the extent necessary to render the same
valid and enforceable.
18. Survival at Termination. The termination of Employee's employment
hereunder shall not affect his obligations to the Corporation hereunder which by
the nature thereof are intended to survive any such termination including,
without limitation, Employee's obligations under Paragraphs 7, 8 and 9.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above set forth.
WMS GAMING INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President, General Manager & COO
EMPLOYEE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
8