EXHIBIT 10.33
AMENDED CONSULTING AND EMPLOYMENT AGREEMENT
AMENDED CONSULTING AND EMPLOYMENT AGREEMENT (this "Agreement") made
and entered into as of the 12th day of November, 1996 by and between
HILTON HOTELS CORPORATION, a Delaware corporation (together with its
successors and assigns permitted under this Agreement, the "Company"), BALLY
ENTERTAINMENT CORPORATION, a Delaware corporation (together with its
successors and assigns permitted under this Agreement, "Bally"), and ARTHUR
M. GOLDBERG (the "Executive").
WHEREAS, the Executive is the Chairman, President, and Chief Executive
Officer of Bally;
WHEREAS, the Company has entered into an Agreement and Plan of Merger
among the Company and Bally dated June 6, 1996 (the "Acquisition Agreement");
WHEREAS, the Executive and Bally have entered into an Employment
Agreement dated November 1, 1990, which agreement has been subsequently amended
on December 4, 1991, September 29, 1993, January 4, 1995 and June 6, 1996
(collectively, the "Bally Employment Agreement");
WHEREAS, the Executive and the Company have entered into a Consulting
Agreement dated June 6, 1996 (the "Original Consulting Agreement") pursuant to
which the Executive and the Company agreed to the termination of the Executive's
employment under the Bally Employment Agreement immediately after the closing of
the merger of Bally and the Company under the Acquisition Agreement (the
"Closing");
WHEREAS, with Bally's consent and agreement, the Executive and the
Company have determined that the Executive could best provide his expertise,
knowledge, and assistance to the Company and its business by having the
Executive terminate his employment with Bally effective as of the day following
the last of the necessary Casino Control Commission approvals of the transaction
provided for in the Acquisition Agreement (said approval date being herein
referred to as the "C.C. Approval Date"), by having the Executive serve as a
consultant to the Company beginning on the second day after the C.C. Approval
Date until the Closing, and by having the Executive become an employee and
officer of the Company immediately after the Closing; and
WHEREAS, the Company desires to retain Executive to provide such
services to the Company and the Executive desires to provide such services to
the Company, subject to the terms and
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provisions of this Agreement, which shall constitute a complete amendment and
restatement of the Original Consulting Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Company, Bally, and the Executive (individually a "Party"
and together the "Parties") agree as follows:
1. INITIAL CONSULTING TERM AND DUTIES; EMPLOYMENT TERM.
(a) This Agreement shall constitute a complete amendment and
restatement of the Original Consulting Agreement.
(b) The Executive's employment with Bally shall terminate on the
day after the C.C. Approval Date.
(c) From the second day after the C.C. Approval Date until the
earlier of (i) the Effective Date (hereinafter defined) or (ii) the date of the
termination of the Acquisition Agreement by the Company or Bally (the "Initial
Consulting Term"), the Executive shall provide consulting services to the
Company at the request of the President and Chief Executive Officer of the
Company on transitional issues with respect to the merger of Bally and the
Company and other mutually-agreeable
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projects, and the Executive shall be paid the compensation and provided with
the benefits, reimbursements, and perquisites set forth in Sections 3, 5, 6,
and 7 of this Agreement (without limiting other rights or obligations of the
Parties with respect to the Initial Consulting Term).
(d) The Executive's employment term with the Company (the
"Employment Term") shall commence on the closing date of the Acquisition
Agreement (the "Effective Date") and shall end at the close of business on the
third anniversary of the Effective Date, unless it is terminated earlier under
Section 9 or extended by mutual agreement of the Company and the Executive.
(e) In the event that the Employment Term is terminated, for any
reason, prior to the close of business on the third anniversary of the Effective
Date, then in such event the Executive shall act as a consultant to the Company
for that period of time which commences on the date of employment termination
and ends on the third anniversary of the Effective Date, all in accordance with
a separate Consulting Agreement to be entered into concurrently with the
termination of the Employment Term, substantially in accordance with the form
annexed hereto as Exhibit 1 (the "New Consulting Agreement").
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2. EMPLOYMENT DUTIES.
(a) During the Employment Term, the Executive shall serve as an
Executive Vice President of the Company and President-Gaming Operations and
shall perform such executive duties as may be assigned to him from time to time
by the President and Chief Executive Officer of the Company.
(b) Except as set forth below, during the Employment Term, the
Executive shall devote his full time and attention to such duties. The
Executive shall not be required to devote his full time and attention to his
duties when absent for sick leave, reasonable vacations, excused leaves of
absences, or attending to his Other Business (hereinafter defined). The Company
acknowledges that the Executive has: (i) substantial investments (including
operating businesses of which he is a substantial owner and for which he serves
as a manager, officer, and/or director) which have required and will continue to
require substantial time and attention by the Executive; (ii) substantial
eleemosynary involvements; and (iii) substantial civic involvements. "Other
Business" shall mean those items described in clauses (i), (ii), and (iii) in
the preceding sentence. The Executive agrees to use his best efforts during the
Employment Term to protect, encourage, and promote the interests of the Company.
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3. COMPENSATION.
(a) During the Initial Consulting Term and the Employment Term,
the Executive shall be paid an annual salary of $2,000,000, payable semi-monthly
in arrears; PROVIDED, HOWEVER, that the portion of such salary during any
taxable year of the Company which, when added to any otherwise deductible
compensation and benefits paid or provided to the Executive by the Company
during such taxable year, would not be deductible by the Company in the taxable
year such salary is paid or accrued because of the application of the limitation
under Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"), shall be deferred and paid to the Executive, in a lump sum, on that
date (the "Deferral Date") which is thirty (30) days after the earlier of (i)
the last day of the Company's taxable year in which the Executive ceases to be a
"covered employee" within the meaning of Code Section 162(m)(3) or (ii) the date
upon which the Company's deduction with respect to all of such deferred salary
shall no longer be subject to limitation under Code Section 162(m) or any
successor section thereto. Any amounts of salary deferred hereunder shall be
credited, from the date it would otherwise have been paid to the date the
deferred amounts are paid, with interest at a floating rate equal to the rate
which Morgan Guaranty announces from time to time as its prime lending rate, as
in effect from time to time, compounded quarterly, and
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such accrued interest shall be paid to the Executive on the Deferral Date
(said deferred salary plus interest collectively referred to as the "Deferred
Compensation").
(b) The Deferred Compensation shall be paid in accordance with
the following provisions:
(1) The Company agrees to pay the Deferred Compensation on
the Deferral Date by wire transfer to an account
designated by the Executive prior to the Deferral Date.
(2) The Company agrees to pay the Deferred Compensation in
any and all events on the Deferral Date without setoff
or offset for any claim whatsoever against the
Executive or any of his affiliates. The existence of
any claim or cause of action on the part of the Company
or any of its affiliates against the Executive or his
affiliates, whether predicated on this Agreement, the
Acquisition Agreement, the Bally Employment Agreement
or otherwise shall not
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constitute a defense or entitle the Company to an
offset against the payment of the Deferred
Compensation in full on the Deferral Date.
(3) Failure to pay the Deferred Compensation on the
Deferral Date shall constitute a default, without any
need for the Executive to have given notice or demand
of any kind to the Company, which notices and demands
of any kind are expressly waived by the Company.
(4) In the event of a default, the Executive shall be
entitled to be paid, upon demand, (i) one hundred
twenty (120%) percent of the Deferred Compensation plus
interest on said amount from the Deferral Date until
paid at the rate of eighteen (18%) percent per annum
(the "Default Rate"); plus all reasonable attorneys'
fees and other costs of collection incurred by the
Executive in effecting collection of the amounts due
hereunder, whether or not a legal action
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is instituted or prosecuted to judgment. All such costs
and expenses shall be added to the amount due under this
Section 3, shall be payable on demand, and shall bear
interest at the Default Rate from the date incurred
until paid in full.
(5) In the event of a default, notwithstanding the
provisions of Section 21 of this Agreement: (i) the
Executive shall be entitled to sue the Company to
effect collection of the amounts due hereunder; (ii)
the Company hereby consents to personal jurisdiction
and venue and to the exclusive jurisdiction of the
Superior Court of the State of New Jersey, Essex
County, and the United States District Court for the
District of New Jersey for the purpose of all legal
proceedings arising out of or relating to this
Section 3; (iii) the Company agrees that service or
delivery of process of any such lawsuit shall
constitute lawful and valid
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service of process if made in accordance with any of the
methods by which notices may be given pursuant to
Section 22; and (iv) the Company waives any defense
based upon personal jurisdiction, venue, improper
service, and the right to assert a claim of FORUM NON
CONVENIENS or the like.
4. GRANT OF STOCK OPTIONS.
(a) On the Effective Date, the Company shall grant the Executive
an option to purchase 600,000 shares of the common stock of the Company (the
"Initial Option"). In the event that the common stock of the Company is subject
to a stock split or stock dividend following the date of this Agreement, or if
there is any other change in the common stock of the Company following the date
of this Agreement, the number of shares underlying the Initial Option shall be
adjusted appropriately to reflect such stock split, stock dividend, or other
change. The Initial Option shall have an exercise price equal to the average of
the high and low prices of the common stock of the Company on the Effective
Date, as reported in The Wall Street Journal. The Initial Option shall: (i)
expire on the fifth anniversary of the date of grant and (ii) be fully
exercisable on the date of grant;
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PROVIDED, HOWEVER, that in the event that (x) the Executive voluntarily
terminates this Agreement and (y) the Executive voluntarily terminates the
New Consulting Agreement prior to that date which is the third anniversary of
the Effective Date, then, in such event, the Initial Option shall expire upon
the 180th day after the date of the Executive's voluntary termination of the
New Consulting Agreement.
(b) On each of the first and second anniversary of the Effective
Date during the Employment Term, the Company shall grant the Executive an option
to purchase 600,000 shares of the common stock of the Company (the "Anniversary
Option"). In the event that the common stock of the Company is subject to a
stock split or stock dividend following the date of this Agreement, or if there
is any other change in the common stock of the Company following the date of
this Agreement, the number of shares underlying each Anniversary Option shall be
adjusted appropriately to reflect such stock split, stock dividend, or other
change. Each Anniversary Option shall have an exercise price equal to the
average of the high and low prices of the common stock of the Company on the
date of grant, as reported in The Wall Street Journal. Each Anniversary Option
shall: (i) expire on the fifth anniversary of the date of grant and (ii) be
fully exercisable on the date of grant; PROVIDED, HOWEVER, that in the event
that (x) the Executive voluntarily terminates this
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Agreement and (y) the Executive voluntarily terminates the New Consulting
Agreement prior to that date which is the third anniversary of the Effective
Date, then, in such event, each of the Anniversary Options shall expire upon
the 180th day after the date of the Executive's voluntary termination of the
New Consulting Agreement.
(c) The Company shall use its reasonable efforts to effect the
registration of the shares of common stock of the Company underlying the Initial
Option and the Anniversary Options under the Securities Act of 1933, as amended,
by filing a registration statement on Form S-8.
5. EMPLOYEE BENEFIT PROGRAMS.
(a) During the Initial Consulting Term and the Employment Term,
the Executive and/or the Executive's family, as the case may be, shall be
entitled to receive benefits under all pension and welfare benefit plans,
practices, policies, and programs provided by the Company (including, without
limitation, medical, prescription drug, dental, disability, employee life
insurance, group life insurance, accidental death, and travel accident insurance
plans and programs) to at least the same extent as the senior executives of the
Company.
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(b) Whether or not the Executive is then serving as a consultant
to or an employee of the Company and notwithstanding anything herein to the
contrary: (i) the Company shall provide the Executive and/or the Executive's
family with health insurance benefits equal or comparable to the health
insurance benefits he is entitled to receive during the Initial Consulting Term
and the Employment Term (pursuant to Section 5(a) above), until the date of the
Executive's 62nd birthday; and (ii) the Company shall fulfill the obligations it
assumed from Bally upon the merger, as set forth in the Split Dollar Agreement
dated September 6, 1991 between Bally and the Arthur M. Goldberg 1989
Irrevocable Trust.
6. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
The Executive is authorized to incur reasonable expenses in
carrying out his duties and responsibilities under this Agreement, and the
Company shall promptly reimburse him for all reasonable business expenses
incurred in connection with carrying out the business of the Company, subject to
documentation in accordance with the Company's policy.
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7. PERQUISITES.
(a) During the Initial Consulting Term and the Employment Term,
the Executive shall be entitled to benefits and perquisites under the fringe
benefits and perquisite programs offered to the Company's senior executive
officers and directors in accordance with the most favorable plans, practices,
programs, and policies of the Company.
(b) Notwithstanding anything herein to the contrary, during the
Initial Consulting Term and the Employment Term, the Executive shall be entitled
to, and the Company shall provide, the Executive with:
(1) office space, secretary (as selected by the Executive),
and support services comparable to the office space,
secretary, and support services currently provided to
the Executive by Bally;
(2) a U.S. automobile comparable to the automobile which
the Executive currently uses, and a full-time driver
(as
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selected by the Executive) for such automobile;
(3) exclusive use of a suite at Bally's Park Place and a
suite at Bally's Las Vegas, as currently occupied by
the Executive (which suite, upon the Company's request,
may be used by others if not then being used by the
Executive); and
(4) unrestricted, but not exclusive, use of the Company's
and Bally's aircraft (leased or owned); PROVIDED,
HOWEVER, that if the Executive uses the Company's or
Bally's aircraft for his personal use, he shall pay to
the Company the cost of such usage, as determined in
accordance with the Company's cost determination
methodology applied to the Company's senior executives
with respect to their personal use of the Company's
aircraft.
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8. PURCHASE OF EXECUTIVE'S RESIDENCE.
Due to the need of the Executive to provide employment services in Las
Vegas, Nevada and Beverly Hills, California, if Bally's has already not done so
or caused it to be done, the Company shall, within 30 days following the
Effective Date, purchase the Executive's residence located at 6 Kimball Circle,
Westfield, New Jersey 07090. The purchase price of such residence shall be
$2,100,000 (which the Parties acknowledge represents the fair market value of
the residence as determined by a real estate appraiser heretofore mutually
selected by the Executive and Bally and approved by the Company).
9. TERMINATION OF EMPLOYMENT TERM.
(a) Unless extended by mutual agreement of the Company and the
Executive, the Employment Term shall terminate at the first to occur of (i) the
close of business on the third anniversary of the Effective Date; (ii) the date
of the death of the Executive; and (iii) at any time after the Due Date (as
defined in Section 25(b)) upon sixty (60) days notice from the Executive to the
Company or the Company to the Executive.
(b) Notwithstanding anything herein to the contrary, the
Employment Term shall not terminate during any
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period of physical or mental incapacity of the Executive which results in the
Executive's temporary or permanent inability to perform the services
contemplated under this Agreement, as determined by an Approved Medical
Doctor. For this purpose, an Approved Medical Doctor shall be a medical
doctor jointly selected by the Executive and the Company. In the event that
the Executive and the Company cannot agree on a medical doctor, each Party
shall select a medical doctor and the two selected medical doctors shall
jointly select a third medical doctor to serve as the Approved Medical Doctor.
10. PARACHUTE PAYMENTS.
(a) If it shall be determined that any payment, distribution, or
benefit received or to be received by the Executive from either Bally or the
Company ("Payments") would be subject to the excise tax imposed by Code Section
4999 (the "Excise Tax"), then the Executive shall be entitled to receive an
additional payment from Bally or the Company (the "Excise Tax Gross-Up Payment")
in an amount such that the net amount retained by the Executive, after the
calculation and deduction of any Excise Tax (together with any penalties and
interest that have been or will be imposed on the Executive in connection
therewith) on the Payments and any federal, state, and local income taxes,
excise tax, and payroll taxes (including the tax imposed by Code
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Section 3101(b)) on the Excise Tax Gross-Up Payment provided for in this
subsection 10(a), shall be equal to the Payments. In determining this amount,
the amount of the Excise Tax Gross-Up Payment attributable to federal income
taxes shall be reduced by the maximum reduction in federal income taxes that
could be obtained by the deduction of the portion of the Excise Tax Gross-Up
Payment attributable to state and local income taxes. Finally, the Excise Tax
Gross-Up Payment shall be subject to income, excise, or payroll tax withholding
to the extent required by applicable law. No payments pursuant to this
Section 10 shall be duplicative of any payments already made by Bally, the
Company, or any affiliate of either.
(b) All determinations required to be made under this Section
10, including whether and when an Excise Tax Gross-Up Payment is required and
the amount of such Excise Tax Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, except as specified in subsection
10(a) above, shall be made by the Company's independent auditors (the
"Accounting Firm"), which shall provide detailed supporting calculations both to
the Company and the Executive within 15 business days after Bally or the Company
makes any Payments to the Executive. The determination of tax liability and the
assumptions made by the Accounting Firm shall be subject to review by the
Executive's tax advisors, and, if the Executive's
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tax advisors do not agree with the determination reached by the Accounting
Firm, then the Accounting Firm and the Executive's tax advisors shall jointly
designate a nationally-recognized public accounting firm, which shall make
the determination. All fees and expenses of the accountants and tax advisors
retained by either the Executive or the Company shall be borne by the
Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this
subsection 10(b), shall be paid by the Company to the Executive within five
days after the receipt of the determination. Any determination by a
jointly-designated public accounting firm shall be binding upon the Company
and the Executive.
(c) As a result of the uncertainty in the application of Code
Section 4999 at the time of the initial determination by Bally or the Company,
it is possible that the Executive may be required to make one or more payments
of Excise Tax to the Internal Revenue Service, together with interest and/or
penalties that have been imposed upon the Executive in connection therewith,
whether upon the Executive's filing of his original or amended tax returns or
upon a subsequent audit, administrative appeal or judicial determination, which
exceed the amounts taken into account in determining the initial Excise Tax
Gross-Up Payment made pursuant to Section 10(a) (such excess payments referred
to as the "Deficiency"). In such an event,
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there shall be an additional Excise Tax Gross-Up Payment computed on the
Deficiency in the same manner as the Excise Tax Gross-Up Payment in Section
1O(a) above, and the same shall be promptly paid by the Company to or for the
benefit of the Executive. In the event that any Excise Tax Gross-Up Payment
exceeds the amount subsequently determined to be due, such excess shall
constitute a loan from the Company to the Executive payable on the fifth day
after demand by the Company (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
(d) Notwithstanding anything herein to the contrary, no Excise
Tax Gross-Up Payment shall be made pursuant to this Section 10 if, and to the
extent that, such Excise Tax Gross-Up Payment has already been paid by the
Company or Bally pursuant to the Bally Employment Agreement.
11. INDEMNIFICATION.
(a) The Company agrees that if the Executive is made a party, or
is threatened to be made a party, to any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (a "Proceeding"), by reason of
the fact that he is or was (i) a director of the Company or Bally, and/or (ii)
serving at the request of the Company or Bally as a director, officer, member,
employee, consultant, or agent of another
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corporation, partnership, joint venture, trust, or other enterprise,
including service with respect to employee benefit plans, whether or not the
basis of such Proceeding is the Executive's alleged action in an official
capacity while serving as a director, officer, member, employee, consultant,
or agent, the Executive shall be indemnified and held harmless by the Company
to the fullest extent legally permitted or authorized by the Company's
certificate of incorporation or bylaws or resolutions of the Company's Board
of Directors or, if greater, by the laws of the State of Delaware, against
all cost, expense, liability, and loss (including, without limitation,
attorney's fees, judgments, fines, ERISA excise taxes, or penalties and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
the Executive in connection therewith, and such indemnification shall
continue as to the Executive, even if he has ceased to be a director, member,
employee, consultant, or agent of the Company, Bally, or other entity and
shall inure to the benefit of the Executive's heirs, executors, and
administrators. The Company shall advance to the Executive all reasonable
costs and expenses incurred by him in connection with a Proceeding within 20
days after receipt by the Company of a written request for such advance.
Such request shall include an undertaking by the Executive to repay the
amount of such advance if it shall ultimately be determined that he is not
entitled to be indemnified against such costs and expenses.
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(b) Neither the failure of the Company (including its board of
directors, independent legal counsel, or stockholders) to have made a
determination prior to the commencement of any proceeding concerning payment of
amounts claimed by the Executive under Section 11(a) above that indemnification
of the Executive is proper because he has met the applicable standard of
conduct, nor a determination of the Company (including its board of directors,
independent legal counsel, or stockholders) that the Executive has not met such
applicable standard of conduct, shall create a presumption that the Executive
has not met the applicable standard of conduct.
12. EFFECT OF AGREEMENT.
Except as specifically provided in this Agreement, this Agreement
shall not affect nor have any force or effect upon any other agreement to which
the Executive is a party and/or beneficiary.
13. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Executive),
and assigns. No rights or obligations of the Company under this Agreement may
be assigned
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or transferred by the Company, except that such rights or obligations may be
assigned or transferred pursuant to a merger or consolidation in which the
Company is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company; PROVIDED, HOWEVER, that the
assignee or transferee is the successor to all or substantially all of the
assets of the Company and such assignee or transferee assumes the
liabilities, obligations, and duties of the Company, as contained in this
Agreement, either contractually or as a matter of law. The Company further
agrees that, in the event of a sale of assets or liquidation as described in
the preceding sentence, it shall take whatever action it legally can in order
to cause such assignee or transferee to expressly assume the liabilities,
obligations, and duties of the Company hereunder. No rights or obligations
of the Executive under this Agreement may be assigned or transferred by the
Executive, except that all of his rights may be transferred by will or
operation of law.
14. REPRESENTATION.
(a) Each of Bally and the Company represents and warrants that
it is fully authorized and empowered to enter into this Agreement and that the
performance of its obligations under this Agreement will not violate any
agreement between it and any other person, firm, or organization.
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(b) The Executive represents that he knows of no agreement
between him and any other person, firm, or organization that would be violated
by the performance of his obligations under this Agreement.
(c) Bally represents that, on or before the date of this
Agreement, the Stock Option and Compensation Committee of Bally's Board of
Directors has approved the acceleration of vesting of all of the Executive's
unvested stock options with respect to Bally's common stock, effective
immediately, whether or not this Agreement is terminated as a result of a
termination of the Acquisition Agreement (as provided by Section 26).
15. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement among
the Parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations, and undertakings, whether
written or oral, among the Parties with respect thereto.
16. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the
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Executive and an authorized officer of the Company; and, if prior to the
Effective Date, Bally. No waiver by any Party of any breach by any other
Party of any condition or provision contained in this Agreement to be
performed by any other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or subsequent
time. Any waiver must be in writing and signed by the Executive or an
authorized officer of the Company or Bally, as the case may be.
17. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
18. SURVIVORSHIP.
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Executive's employment or consulting arrangements
to the extent necessary to the intended preservation of such rights and
obligations, including, but not by way of limitation, those rights and
obligations set forth in Sections 3, 4, 5(b), 10, 11, and 25.
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19. BENEFICIARIES / REFERENCES.
The Executive shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death by
giving the Company written notice thereof. In the event of the Executive's
death or a judicial determination of his incompetence, reference in this
Agreement to the Executive shall be deemed, where appropriate, to refer to his
beneficiary, estate, or other legal representative.
20. GOVERNING LAW / JURISDICTION.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of New Jersey without reference to principles of
conflict of laws.
21. RESOLUTION OF DISPUTES.
Any disputes arising under or in connection with this Agreement shall,
at the election of the Executive, Bally, or the Company, be resolved by binding
arbitration, to be held in Trenton, New Jersey in accordance with the rules and
procedures of the American Arbitration Association. Judgment upon the award
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rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Costs of the arbitration or litigation, including, without limitation,
reasonable attorneys' fees of all Parties, shall be borne by the Company.
Pending the resolution of any arbitration or court proceeding, the Company or
Bally shall continue payment of all amounts due the Executive under this
Agreement and all benefits to which the Executive is entitled at the time the
dispute arises.
22. NOTICES.
Any notice given to a Party shall be in writing and shall be deemed to
have been given when delivered personally or sent by certified or registered
mail, postage prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed address as such
Party may subsequently give such notice of:
If to the Company, to:
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
Attention: William C. Lebo, Jr., Esq.
with a copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Attention: Bruce E. Rosenblum, Esq.
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If to Bally, to:
Chief Executive Officer
Bally Entertainment Corporation
380 Middlesex Avenue
Carteret, NJ 07008
with a copy to:
Dennis J. Block, Esq.
Weil, Gotshal & Manges, LLP
767 Fifth Avenue
New York, NY 10153
and:
If to the Executive, to:
Mr. Arthur M. Goldberg
380 Middlesex Avenue
Carteret, NJ 07008
with a copy to:
Frank L. Stifelman, Esq.
Orloff, Lowenbach, Stifelman & Siegel, P.A.
101 Eisenhower Parkway
Roseland, New Jersey 07068
23. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
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24. COUNTERPARTS.
This Agreement may be executed in two or more counterparts.
25. COORDINATION WITH CERTAIN OTHER AGREEMENTS.
(a) Notwithstanding the provisions of Section 1(b) and except as
otherwise provided herein, Bally and the Company agree that Bally shall provide
the Executive with all payments and benefits described in Section 1O(e) of the
Bally Employment Agreement, subject only to the following adjustments:
(1) If the "Determination Price", as defined in the
Acquisition Agreement (the "Determination Price"),
is $31.00, the amount of the lump-sum payment (the
"Lump-Sum Payment") which the Executive shall be
entitled to receive pursuant to clause (i) of
Section 10(e) of the Bally Employment Agreement
shall be $8,030,000. If the Determination Price is
less than $31.00, the Lump-Sum Payment shall be
$8,030,000, plus $50,741 (the "Adjustment Amount")
for
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each $1.00 by which the Determination Price is
less than $31.00, subject to proration of the
Adjustment Amount to the extent that the
Determination Price divided by $1.00 is not a whole
number. If the Determination Price is more than
$31.00, the Lump-Sum Payment shall be $8,030,000,
minus the Adjustment Amount for each $1.00 by which
the Determination Price is more than $31.00, subject
to proration of the Adjustment Amount to the extent
that the Determination Price divided by $1.00 is not
a whole number.
(2) Bally shall pay: (i) the Lump-Sum Payment; and (ii)
the amounts required pursuant to Section 10(e)(v) of
the Bally Employment Agreement (computed in
accordance with Section 8(g)(vi) of the Bally
Employment Agreement and agreed to be a gross amount
of $6,880,622), by wire transfer (pursuant to
instructions received from Arthur M. Goldberg prior
to the Effective Date), respectively, to
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Arthur M. Goldberg for the Lump-Sum Payment and to
the "Arthur M. Goldberg 1993 Grantor Trust UTAD May
14, 1993, as amended October 17, 1993 and December
29, 1993, Tarek Sherif, Trustee" for the Section
10(e)(v) payments; both subject to the appropriate
withholding as required by law.
(b) Notwithstanding any provision to the contrary of any stock
option plan of Bally or any stock option agreement between Bally and the
Executive, or any other agreement, the Company shall pay the Executive the
amounts specified under the Acquisition Agreement with respect to the
cancellation of the Executive's stock options with respect to Bally's common
stock seventy-seven (77) days after the Effective Date (the "Due Date"),
together with interest from the Effective Date until the Due Date, at a floating
rate equal to the rate which Morgan Guaranty announces from time to time as its
prime lending rate, as in effect from time to time (said amounts collectively
the "Deferred Payment"), in accordance with the remaining provisions of this
Section 25(b).
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(1) The Company agrees to pay the Deferred Payment on the
Due Date by wire transfer to an account designated by
the Executive prior to the Due Date.
(2) The Company agrees to pay the Deferred Payment in any
and all events on the Due Date without setoff or offset
for any claim whatsoever against the Executive or any
of his affiliates. The existence of any claim or cause
of action on the part of the Company or any of its
affiliates against the Executive or his affiliates,
whether predicated on this Agreement, the Acquisition
Agreement, the Bally Employment Agreement or otherwise
shall not constitute a defense or entitle the Company
to an offset against the payment of the Deferred
Payment in full on the Due Date.
(3) Failure to pay the Deferred Payment on the Due Date
shall constitute a default, without any need for the
Executive to have given notice or demand of any kind
-32-
to the Company, which notices and demands of any kind
are expressly waived by the Company.
(4) In the event of a default, the Executive shall be
entitled to be paid, upon demand, (i) one hundred
twenty (120%) percent of the Deferred Payment plus
interest on said amount from the Due Date until paid at
the rate of eighteen (18%) percent per annum (the
"Default Rate"); plus all reasonable attorneys' fees
and other costs of collection incurred by the Executive
in effecting collection of the amounts due hereunder,
whether or not a legal action is instituted or
prosecuted to judgment. All such costs and expenses
shall be added to the amount due under this
Section 25(b), shall be payable on demand, and shall
bear interest at the Default Rate from the date
incurred until paid in full.
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(5) In the event of a default, notwithstanding the
provisions of Section 21 of this Agreement: (i) the
Executive shall be entitled to sue the Company to
effect collection of the amounts due hereunder; (ii)
the Company hereby consents to personal jurisdiction
and venue and to the exclusive jurisdiction of the
Superior Court of the State of New Jersey, Essex
County, and the United States District Court for the
District of New Jersey for the purpose of all legal
proceedings arising out of or relating to this
Section 25(b); (iii) the Company agrees that service or
delivery of process of any such lawsuit shall
constitute lawful and valid service of process if made
in accordance with any of the methods by which notices
may be given pursuant to Section 22; and (iv) the
Company waives any defense based upon personal
jurisdiction, venue, improper service, and the right to
assert a claim of FORUM NON CONVENIENS or the like.
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(6) (i) In the event that, as a result of an income tax
audit by any taxing authority or a related
administrative appeal, judicial decision or settlement,
it is finally determined (the "Tax Determination") that
the Executive is required to include some or all of the
Deferred Payment in his gross income for federal, state
or local income tax purposes in a taxable year (the
"Deficiency Year") prior to the taxable year in which
he actually reports such amount (the "Refund Year"),
then in such event the Company shall pay the Executive
an amount (the "Tax Indemnity") equal to the sum of (x)
any reasonable fees paid by the Executive to his tax
advisors in connection with the Tax Determination, plus
(y) the excess, if any, of:
(A) the entire amount of taxes, interest, penalties
and additions to tax imposed on the Executive as a
result of the Tax Determination
-35-
for the Deficiency Year (or any other year to the
extent that the adjustment relating to the Deferred
Payment affects the amount of a carryback or
carryforward); over
(B) any refund or credit of tax, plus interest, paid
or allowed to the Executive for the Refund Year as
a result of the Tax Determination.
(ii) In addition to the Tax Indemnity, the Executive
shall be entitled to receive an additional payment from
the Company (the "Income Tax Gross-Up Payment") in an
amount such that the total amount received by the
Executive from the Company under this subsection
25(b)(6) (I.E., the sum of the Tax Indemnity and the
Income Tax Gross-up Payment), after subtracting any
federal, state, and local income taxes, Excise Tax, and
payroll taxes (including the tax imposed by Code
Section 3101(b)) imposed on the Executive by reason of
-36-
(x) his receipt from the Company of the total amount
provided for in this subsection 25(b)(6), and (y) his
receipt of refunds or credits of tax plus interest
referred to in clause (B) of Section 25(b)(6)(i) above,
shall be equal to the Tax Indemnity.
(iii) All determinations of the amounts of payments
required to be made under this Section 25(b)(6),
including whether and when a Tax Indemnity or an Income
Tax Gross-Up Payment is required and the amount of
payment and the assumptions to be utilized in arriving
at such determination, except as specified above, shall
be made in the same manner as provided in Section 10(a)
for Excise Tax Gross-Up Payments.
(iv) Any Tax Indemnity or Income Tax Gross-Up Payment,
as determined pursuant to this subsection 25(b)(6),
shall be paid by the Company to the Executive within
five days after the receipt of
-37-
the Accounting Firm's determination. Any
determination by a jointly-designated public
accounting firm shall be binding upon the Company
and the Executive. The Company's payment of the Tax
Indemnity and the Income Tax Gross-Up Payment shall
be subject to the same provisions applicable to the
Company's payment of the Deferred Payment which are
set forth in subsections 25(b)(1) through 25(b)(5).
26. EFFECTIVENESS OF AGREEMENT.
Notwithstanding anything herein to the contrary, except with respect
to Sections 1(b) and 14(c) of this Agreement, and except with respect to any
Sections of this Agreement which apply during (or relate to) the Initial
Consulting Term, this Agreement shall not become effective until the closing of
the merger of the Company and Bally under the Acquisition Agreement and neither
the Company, Bally, nor the Executive shall have any obligations or liabilities
hereunder until this Agreement shall then become effective. In the event that
the Company or Bally terminate the Acquisition Agreement, this Agreement shall
be terminated and
-38-
become void and have no effect, without further action by the Company or the
Executive.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
HILTON HOTELS CORPORATION
By: /s/ Stephen F. Bollenbach
-------------------------------------
[name]
[title]
BALLY ENTERTAINMENT CORPORATION
By: /s/ ARTHUR M. GOLDBERG
-------------------------------------
[name]
[title]
/s/ ARTHUR M. GOLDBERG
----------------------------------------
ARTHUR M. GOLDBERG
-39-
EXHIBIT 1
FORM OF CONSULTING AGREEMENT
PURSUANT TO SECTION 1(e) OF THE
AMENDED CONSULTING AND EMPLOYMENT AGREEMENT
CONSULTING AGREEMENT (this "Agreement"), made and entered into as of the
12th day of November, 19__ by and between Hilton Hotels Corporation, a Delaware
corporation (together with its successors and assigns permitted under this
Agreement, the "Company"), and Arthur M. Goldberg (the "Consultant").
W I T N E S S E T H :
WHEREAS, the Consultant was the Executive Vice President of the Company and
the President-Gaming Operations pursuant to the terms and conditions of that
Amended Consulting and Employment Agreement (the "Employment Agreement") by and
among the parties hereto and Bally Entertainment Corporation ("Bally") dated as
of ____________, 1996, which employment commenced on the date of the closing of
the merger of the Company and Bally (the "Effective Date") pursuant to the
Agreement and Plan of Merger among the Company and Bally dated June 6, 1996;
WHEREAS, the Consultant's employment with the Company has been terminated;
WHEREAS, the Consultant has the ability to offer to the Company expertise,
knowledge and assistance with respect to matters relating to its business; and
WHEREAS, the Company desires to retain Consultant to provide such services
to the Company, and the Consultant desires to provide such services to the
Company, subject to the terms and provisions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Company and the Consultant (individually a "Party" and
together the "Parties") agree as follows:
1. CONSULTING TERM.
The Consulting Term shall commence on the day of the termination of the
Consultant's employment term with the Company (the "Commencement Date") and
shall end at the close of business on the third anniversary of the Effective
Date, unless it is terminated earlier under Section 9 or extended by mutual
agreement of the Parties.
2. CONSULTING SERVICES.
(a) The Consultant shall provide Consulting Services to the Company
at the request of the President and Chief Executive Officer of the Company. Such
Consulting Services shall include advice on the Company's gaming businesses and
other mutually agreeable projects.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the Company shall not, without the Consultant's prior written
consent, require the Consultant to provide Consulting Services for more than
100 full days in any calendar year (or aliquot portion thereof if this
Consulting Agreement is in effect for less than a full twelve months in any
calendar year). In addition, the Company shall notify the Consultant in
writing as to the Company's need for the Consultant's services within a
reasonable time prior to the date such services are required.
(c) The Parties acknowledge and agree that the Consultant is an
independent contractor and is not a partner, employee, or agent with the
Company or any of its subsidiaries or affiliates. Nothing in this Agreement
shall be construed to grant either Party the authority to enter into a
contract in the name of the other Party, or to bind the other Party in any
manner. Notwithstanding the above, at the request of the Company the
Consultant agrees to accept and serve in the position of a Vice-Chairman of
the Company during the Consulting Term.
3. CONSULTING FEE.
The Consultant shall be paid an annual Consulting Fee of $2,000,000,
payable on a quarterly basis in advance.
4. GRANT OF STOCK OPTION.
(a) If, as of the Commencement Date, the Company has not fulfilled
its option grant obligations provided for in Section 4(b) of the Employment
Agreement, then on each of the
-2-
first and second anniversary of the Effective Date, the Company shall grant
the Consultant an option to purchase 600,000 shares (subject to any
adjustments required under Section 4(b) of the Employment Agreement before
the Commencement Date) of the common stock of the Company (the "Anniversary
Option"). In the event that the common stock of the Company is subject to a
stock split or stock dividend following the date of this Agreement, or if
there is any other change in the common stock of the Company following the
date of this Agreement, the number of shares underlying each Anniversary
Option shall be adjusted appropriately to reflect such stock split, stock
dividend, or other change. Each Anniversary Option shall have an exercise
price equal to the average of the high and low prices of the common stock of
the Company on the date of grant, as reported in The Wall Street Journal.
Each Anniversary Option shall: (i) expire on the fifth anniversary of the
date of grant and (ii) be fully exercisable on the date of grant; PROVIDED,
HOWEVER, that in the event that (x) the termination of the Consultant's
employment term with the Company resulted from a voluntary termination by the
Consultant, and (y) the Consultant voluntarily terminates this Agreement prior
to that date which is the third anniversary of the Effective Date, then in
such event each of the Anniversary Options shall expire upon the 180th day
after the date of Consultant's voluntary termination of this Agreement.
(b) The Company shall use its reasonable efforts to effect the
registration of the shares of common stock of the Company underlying the
Anniversary Options under the Securities Act of 1933, as amended, by filing a
registration statement on Form S-8.
5. EMPLOYEE BENEFIT PROGRAMS.
(a) During the Consulting Term, the Consultant and/or the
Consultant's family, as the case may be, shall be entitled to receive
benefits that are comparable to all benefits under all welfare benefit plans,
practices, policies and programs provided by the Company (including, without
limitation, medical, prescription, dental, disability, employee life
insurance, group life insurance, accidental death and travel accident
insurance plans and programs) to at least the same extent as the senior
executives of the Company. In the event that the Company cannot provide
comparable benefits to the Consultant under any group benefit plan or
arrangement, the Company shall provide the Consultant with the after-tax
economic equivalent of the benefits provided under such group plan or
arrangement in which he is unable to participate. The economic equivalent of
any benefit foregone shall be deemed to be a reasonable competitive cost that
the Consultant would reasonably incur in obtaining such benefit
-3-
for himself on an individual basis.
(b) Whether or not the Consultant is then serving as a consultant
to the Company and notwithstanding anything herein to the contrary: (i) the
Company shall provide the Consultant and/or the Consultant's family with
health insurance benefits equal or comparable to the health insurance
benefits he is entitled to receive during the Consulting Term (pursuant to
Section 5(a) above), until the date of the Executive's 62nd birthday; and
(ii) the Company shall fulfill the obligations it assumed from Bally upon the
merger, as set forth in the Split Dollar Agreement dated September 6, 1991
between Bally and the Arthur M. Goldberg 1989 Irrevocable Trust.
6. REIMBURSEMENT OF BUSINESS AND OTHER EXPENSES.
The Consultant is authorized to incur reasonable expenses in carrying
out his duties and responsibilities under this Agreement and the Company
shall promptly reimburse him for all reasonable business expenses incurred in
connection with carrying out the business of the Company, subject to
documentation in accordance with the Company's policy.
7. PERQUISITES.
(a) During the Consulting Term, the Consultant shall be entitled
to benefits and perquisites that are comparable to the fringe benefits and
perquisites offered to the Company's senior executive officers and directors
in accordance with the most favorable plans, practices, programs and policies
of the Company.
(b) Notwithstanding anything herein to the contrary, during the
Consulting Term, the Consultant shall be entitled to, and the Company shall
provide the Consultant with:
(1) office space, secretary (as selected by the Consultant)
and support services comparable to the office space,
secretary and support services equivalent to that
provided to the Consultant by Bally when he was its Chief
Executive Officer;
(2) a U.S. automobile comparable to the automobile used by
the Consultant when he was Chief Executive Officer of
Bally, and a full-time driver (as selected by the
Consultant) for such automobile;
-4-
(3) exclusive use of a suite at Bally's Park Place and a
suite at Bally's Las Vegas, as occupied by the Consultant
when he was Chief Executive Officer of Bally (which
suite, upon the Company's request, may be used by others
if not then being used by Consultant); and
(4) unrestricted, but not exclusive, use of the Company's and
Bally's aircraft (leased or owned); PROVIDED, HOWEVER,
that if the Consultant uses the Company's or Bally's
aircraft for his personal use, he shall pay to the
Company the cost of such usage, as determined in
accordance with the Company's cost determination
methodology applied to the Company's senior executives
with respect to their personal use of the Company's
aircraft.
8. TERMINATION OF CONSULTING TERM.
(a) Unless extended by mutual agreement of the Parties the
Consulting Term shall terminate at the earlier of the (i) the close of
business on the third anniversary of the Effective Date or (ii) the date of
the death of the Consultant.
(b) Notwithstanding anything herein to the contrary, the
Consulting Term shall not terminate during any period of physical or mental
incapacity of the Consultant which results in the Consultant's temporary or
permanent inability to perform the services contemplated under this
Agreement, as determined by an Approved Medical Doctor. For this purpose, an
Approved Medical Doctor shall be a medical doctor jointly selected by the
Consultant and the Company. In the event that the Consultant and the Company
cannot agree on a medical doctor, each party shall select a medical doctor
and the two selected medical doctors shall jointly select a third medical
doctor to serve as the Approved Medical Doctor.
9. PARACHUTE PAYMENTS.
The provisions of Section 10 of the Employment Agreement shall be
applicable to the Consultant and the Company as if set forth in full herein.
-5-
10. INDEMNIFICATION.
The provisions of Section 11 of the Employment Agreement shall be
applicable to the Consultant and the Company as if set forth in full herein.
11. EFFECT OF AGREEMENT.
Except as specifically provided in this Agreement, this Agreement shall not
affect nor have any force or effect upon any other agreement to which the
Consultant is a party and/or beneficiary, including, without limitation, those
provisions of the Employment Agreement which survive the termination of the
Executive's employment.
12. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of the Consultant)
and assigns. No rights or obligations of the Company under this Agreement may
be assigned or transferred by the Company except that such rights or obligations
may be assigned or transferred pursuant to a merger or consolidation in which
the Company is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of the Company; PROVIDED, HOWEVER, that the
assignee or transferee is the successor to all or substantially all of the
assets of the Company and such assignee or transferee assumes the liabilities,
obligations and duties of the Company, as contained in this Agreement, either
contractually or as a matter of law. The Company further agrees that, in the
event of a sale of assets or liquidation as described in the preceding sentence,
it shall take whatever action it legally can in order to cause such assignee or
transferee to expressly assume the liabilities, obligations and duties of the
Company hereunder. No rights or obligations of the Consultant under this
Agreement may be assigned or transferred by the Consultant, except that all of
his rights may be transferred by will or operation of law.
13. REPRESENTATION.
The Company represents and warrants that it is fully authorized and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization. The Consultant represents that he knows
of no agreement between him and any other person, firm or organization that
would be violated by the performance of his obligations under this Agreement.
-6-
14. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement between
the Parties concerning the subject matter hereof and (except as provided
otherwise in this Agreement or the Employment Agreement) supersedes all prior
agreements, understandings, discussions, negotiations and undertakings,
whether written or oral, between the Parties with respect thereto.
15. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by the Consultant and an authorized officer
of the Company. No waiver by either Party of any breach by the other Party of
any condition or provision contained in this Agreement to be performed by
such other Party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same or any prior or subsequent time. Any
waiver must be in writing and signed by the Consultant or an authorized
officer of the Company, as the case may be.
16. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in
part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law.
17. SURVIVORSHIP.
The respective rights and obligations of the Parties hereunder shall
survive any termination of the Consulting Term to the extent necessary to the
intended preservation of such rights and obligations, including, but not by
way of limitation, those rights and obligations set forth in Sections 3, 4,
5(b), 9, and 10.
18. BENEFICIARIES/REFERENCES.
The Consultant shall be entitled, to the extent permitted under any
applicable law, to select and change a beneficiary or beneficiaries to
receive any compensation or benefit payable hereunder following the
Consultant's death by giving the Company written notice thereof. In the event
of the Consultant's death or a judicial determination of his incompetence,
reference in this Agreement to the Consultant shall be deemed, where
appropriate, to refer to his beneficiary, estate
-7-
or other legal representative.
19. GOVERNING LAW/JURISDICTION.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of New Jersey without reference to principles of
conflict of laws.
20. RESOLUTION OF DISPUTES.
Any disputes arising under or in connection with this Agreement shall, at
the election of the Consultant or the Company, be resolved by binding
arbitration, to be held in Trenton, New Jersey in accordance with the rules and
procedures of the American Arbitration Association. Judgment upon the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Costs of the arbitration or litigation, including, without limitation,
reasonable attorneys' fees of both Parties, shall be borne by the Company.
Pending the resolution of any arbitration or court proceeding, the Company shall
continue payment of all amounts due the Consultant under this Agreement and all
benefits to which the Consultant is entitled at the time the dispute arises.
21. NOTICES.
Any notice given to a Party shall be in writing and shall be deemed to have
been given when delivered personally or sent by certified or registered mail,
postage prepaid, return receipt requested, duly addressed to the party concerned
at the address indicated below or to such changed address as such Party may
subsequently give such notice of:
If to the Company, to:
Hilton Hotels Corporation
9336 Civic Center Drive
Beverly Hills, CA 90210
Attention: William C. Lebo, Jr., Esq.
with a copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Attention: Bruce E. Rosenblum, Esq.
and:
-8-
If to the Consultant, to:
Mr. Arthur Goldberg
380 Middlesex Avenue
Carteret, NJ 07008
with a copy to:
Frank L. Stifelman, Esq.
Orloff, Lowenbach, Stifelman & Siegel, P.A.
101 Eisenhower Parkway
Roseland, NJ 07068
22. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
23. COUNTERPARTS.
This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
HILTON HOTELS CORPORATION
By: /s/ STEPHEN F. BOLLENBACH
-------------------------------------
Name: Stephen F. Bollenbach
Title: President and Chief
Executive Officer
/s/ ARTHUR M. GOLDBERG
----------------------------------------
ARTHUR M. GOLDBERG
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