Exhibit 10.37
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made on September 10, 1998,
by and between HOLLYWOOD PARK, INC. a Delaware corporation ("Company"), and PAUL
ALANIS, an individual ("Executive"), with respect to the following facts and
circumstances:
RECITALS
Executive is currently employed as president and chief operating officer of
Horseshoe Gaming, LLC ("Horseshoe"). Company desires to retain Executive as
President and Chief Operating Officer of Company after Executive completes his
obligations under his existing employment agreement and after such agreement has
terminated. Executive desires to be retained by Company in that capacity, on
the terms and conditions and for the consideration set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE 1
EMPLOYMENT AND TERM
1.1 Employment. Company agrees to engage Executive in the capacity as
President and Chief Operating Officer of Company on the Effective Date (as
hereinafter defined) and Executive hereby accepts such engagement by Company
upon the terms and conditions specified below. It is understood and agreed,
however, that it is the intent of the parties in entering into this Agreement
that Executive is to be promoted to the position of Chief Executive Officer of
Company and a member of the Board of Directors by at some point in time during
1999.
1.2 Term. The term of this Agreement (the "Term") shall commence on January
1, 1999 (or such earlier date on which Executive shall be released from his
commitments to his current employer (such date being referred to as the
"Effective Date") and shall continue in force until three years from and after
the Effective Date, unless earlier terminated under Article 6 below. Each 12-
month period commencing as of the Effective Date is sometimes called a year of
the "Term," and the date which is 365 days from and after the Effective Date
shall be referred to as the "Anniversary Date"). At least ninety (90) days prior
to the expiration of the Term (as the same may be extended from time to time) ,
Executive and Company shall advise each other whether they wish to renew the
term of this Agreement and the proposed basis for such renewal.
ARTICLE 2
DUTIES OF EXECUTIVE
2.1 Duties. Executive shall perform all the duties and obligations of
President and Chief Operating Officer, including primary responsibility for
Company's day-to-day operations subject to the control and supervision of the
Chief Executive Officer of Company and such other executive duties consistent
with the foregoing as may be assigned to him from time to time by the Chief
Executive Officer of Company. Executive shall report to the Chief Executive
Officer of Company. Upon promotion to Chief Executive Officer, Executive shall
perform the duties generally associated with such position as presently held by
Mr. R.D. Hubbard, subject to the control and supervision of the Board of
Directors, and such other executive duties consistent with the foregoing as may
be assigned to him from time to time by the Board of Directors of Company.
Executive shall report to the Chairman of the Board of Directors. Executive
shall perform the services contemplated herein faithfully, diligently, to the
best of his ability and in the best interests of Company. Executive shall
devote all his business time and efforts to the rendition of such services.
Executive shall, at all times perform such services in compliance with, and to
the extent of his authority, shall to the best of his ability cause Company to
be in compliance with, any and all laws, rules and regulations applicable to
Company of which Executive is aware. Executive may rely on Company's inside
counsel and outside lawyers in connection with such matters. Executive shall,
at all times during the Term, in all material respects adhere to and obey any
and all written internal rules and regulations governing the conduct of
Company's employees, as established or modified from time to time; provided,
however, in the event of any conflict between the provisions of this Agreement
and any such rules or regulations, the provisions of this Agreement shall
control.
2.2 Location of Services. Executive's principal place of employment shall
be at Company's headquarters in the greater Los Angeles, California area.
Executive understands he will be required to travel to Company's various
operations as part of his employment.
2.3 Exclusive Service. Except as otherwise expressly provided herein,
Executive shall devote his business time, attention, energies, skills, learning
and best efforts to the business of Company. Executive may participate in
social, civic, charitable, religious, business, educational or professional
associations, so long as such participation does not materially interfere with
the duties and obligations of Executive hereunder. This Section 2.3, however,
shall not be construed to prevent Executive from making passive outside
investments so long as such investments do not require material time of
Executive or otherwise interfere with the performance of Executive's duties and
obligations hereunder. Executive shall not make any investment in an enterprise
that competes with Company without the prior written approval of Company after
full disclosure of the facts and circumstances; provided, however, that so long
as Executive does not utilize material, non-public information this sentence
shall not preclude Executive from owning up to one percent (1%) of the
securities of a publicly traded entity. Company acknowledges that Executive
presently owns an approximately 3% interest in Horseshoe Gaming, LLC, which
Executive, at the termination of his employment with Horseshoe Gaming, LLC.,
will sell back to such
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company pursuant to the terms of his existing employment agreement. During the
Term, Executive shall not directly or indirectly work for or provide services to
or own an equity interest in any person, firm or entity engaged in the casino
gaming, card club or horse racing business. In this regard, Executive
acknowledges that the gaming industry is national in scope and that accordingly
this covenant shall apply throughout the United States.
ARTICLE 3
COMPENSATION
3.1 Salary. In consideration for Executive's services hereunder, Company
shall pay Executive an annual salary at the rate of $600,000 per year during
each of the years of the Term; payable in accordance with Company's regular
payroll schedule from time to time (less any deductions required for Social
Security, state, federal and local withholding taxes, and any other authorized
or mandated withholdings).
3.2 Bonus. Executive shall be entitled to earn a bonus with respect to each
year of the Term during which Executive is employed under this Agreement of not
less than $100,000 and up to $600,000 based upon the following criteria: a) the
first $100,000 shall be paid so long as Executive remains employed by Company
for the year in question; b) the next $200,000 shall be paid if Company meets
its EBITDA budget (as established by the Board in consultation with Executive)
for the year in question and does not exceed its capital budget for such year;
and c) the remaining $300,000 at the discretion of the Board of Directors. For
the purposes of determining whether Company has met its EBITDA budget, income
and expenses relating to acquisitions and new projects made during the year
shall be disregarded unless such acquisitions or projects were included in the
budget for the year and the budget shall be equitably adjusted for divestitures
made during the year not contemplated by the budget. No bonus under clause b)
will be earned or payable if Company's results are less than those established
as target results under its budget. Any such bonus earned by Executive shall be
paid annually within ninety (90) days after the conclusion of Company's fiscal
year. The amount of and criteria for earning bonuses may be adjusted by mutual
agreement of Executive and Company.
3.3 Stock Options. As an additional element of compensation to Executive,
in consideration of the services to be rendered hereunder, Company shall grant
to Executive options to purchase 400,000 shares of Company's common stock,
300,000 of which shall have an exercise price equal to the fair market value of
such stock on the date hereof and the remaining 100,000 options shall have an
exercise price of $18.00 (eighteen dollars). The terms and conditions of such
options shall be governed by a Stock Option Agreement between Company and
Executive, in the form attached hereto as Exhibit A. Three Hundred Thousand
(300,000) of such options (including 100,000 exercisable at $18) have been
granted subject to approval by Company's stockholders at its next annual meeting
of stockholders. Company covenants and agrees to recommend such approval.
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ARTICLE 4
EXECUTIVE BENEFITS
4.1 Vacation. In accordance with the general policies of Company applicable
generally to other senior executives of Company pursuant to Company's personnel
policies from time to time, Executive shall be entitled to four weeks vacation
each calendar year, without reduction in compensation.
4.2 Company Employee Benefits. Executive shall receive all group insurance
and pension plan benefits and any other benefits on the same basis as they are
available generally to other senior executives of Company under Company
personnel policies in effect from time to time.
4.3 Benefits. Executive shall receive all other such fringe benefits as
Company may offer generally to other senior executives of Company under Company
personnel policies in effect from time to time, such as health and disability
insurance coverage and paid sick leave.
4.4 Indemnification. Executive shall have the benefit of indemnification as
provided under applicable law and the bylaws of Company, which indemnification
shall continue after the termination of this Agreement for such period as may be
necessary to continue to indemnify Executive for his acts during the term
hereof. Company shall cause Executive to be covered by the current policies of
directors and officers liability insurance covering directors and officers of
Company, copies of which have been provided to Executive, in accordance with
their terms, to the maximum extent of the coverage available for any director or
officer of Company. Company shall use commercially reasonable efforts to cause
the current policies of directors and officers liability insurance covering
directors and officers of Company to be maintained throughout the term of
Executive's employment with Company and for such period thereafter as may be
necessary to continue to cover acts of Executive during the term of his
employment (provided that Company may substitute therefor, or allow to be
substituted therefor, policies of at least the same coverage and amounts
containing terms and conditions which are, in the aggregate, no less
advantageous to the insured in any material respect).
ARTICLE 5
REIMBURSEMENT FOR EXPENSES
Executive shall be reimbursed by Company for all ordinary and necessary
expenses incurred by Executive in the performance of his duties or otherwise in
furtherance of the business of Company in accordance with the policies of
Company in effect from time to time. Executive shall keep accurate and complete
records of all such expenses, including but not limited to, proof of payment and
purpose. Executive shall account fully for all such expenses to Company.
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ARTICLE 6
TERMINATION
6.1 Termination for Cause. Without limiting the generality of Section 6.2,
Company shall have the right to terminate Executive's employment, without
further obligation or liability to Executive, upon the occurrence of any one or
more of the following events, which events shall be deemed termination for
cause.
6.1.1 Failure to Perform Duties. If Executive neglects to perform the
duties of his employment under this Agreement in a professional and businesslike
manner after having received written notice specifying such failure to perform
and a reasonable opportunity, not to exceed ten days, to perform or if such
performance cannot be completed within such time period, commenced within such
period and diligently pursued to completion as soon as practicable thereafter.
6.1.2 Willful Breach. If Executive willfully commits a material breach of
this Agreement or a material willful breach of his fiduciary duty to Company.
6.1.3 Wrongful Acts. If Executive is convicted of a felony or any other
serious crime, commits a serious wrongful act or engages in other misconduct
involving acts of moral turpitude that would make the continuance of his
employment by Company materially detrimental to Company, which determination
shall be made in the reasonable exercise of Company's judgment.
6.1.4 Disability. If Executive is physically or mentally disabled from the
performance of a major portion of his duties for a continuous period of 120 days
or greater, which determination shall be made in the reasonable exercise of
Company's judgment, provided, however, if Executive's disability is the result
of a serious health condition as defined by the federal Family and Medical Leave
Act (or its California equivalent) ("FMLA"), Executive's employment shall not be
terminated due to such disability at any time during or after any period of
FMLA-qualified leave except as permitted by FMLA. If there should be a dispute
between Company and Executive as to Executive's physical or mental disability
for purposes of this Agreement, the question shall be settled by the opinion of
an impartial reputable physician or psychiatrist agreed upon by the parties or
their representatives, or if the parties cannot agree within ten days after a
request for designation of such party, then a physician or psychiatrist designed
by the Los Angeles County Medical Association. The certification of such
physician or psychiatrist as to the questioned dispute shall be final and
binding upon the parties hereto.
6.2 Termination Without Cause. Notwithstanding anything to the contrary
herein, Company shall have the right to terminate Executive's employment under
this Agreement at any time without cause by giving notice of such termination to
Executive.
6.3 Termination by Executive for Good Reason. Executive may terminate his
employment under this Agreement on thirty (30) days prior notice to Company for
good reason. For purposes of this Agreement, "good reason" shall mean and be
limited to (a) a
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material breach of this Agreement by Company (including without limitation any
material reduction in the authority or duties of Executive or any relocation of
his or its principal place of business outside the greater Los Angeles
metropolitan area) and the failure of Company to remedy such breach within
thirty (30) days after written notice (or as soon thereafter as practicable so
long as it commences effectuation of such remedy within such time period and
diligently pursues such remedy to completion as soon as practicable); or (b) a
"change of control" with respect to the ownership of Company. For purposes of
this Agreement, a change of control shall mean (a) a sale of substantially all
of the property or more than eighty percent (80%) of the then outstanding stock
of Company to another corporation; or (b) the dissolution of liquidation of
Company or the reorganization, merger or consolidation of Company with one or
more corporations as a result of which Company is not the surviving corporation.
6.4 Termination by Executive Upon Failure to be Promoted. Executive may
terminate his employment under this Agreement on thirty (30) days prior notice
to Company upon failure of Company to designate Executive as Chief Executive
Officer or elect Executive as a member of its Board of Directors on or before
December 31, 1999; provided however, if Company offers to so designate and
elect, and Executive declines, Executive shall not have the right to elect to
terminate pursuant to this Section. Executive must elect to exercise such
termination right on or before March 31, 2000, at which time such right to
terminate shall be deemed waived if not previously exercised.
6.5 Effectiveness on Notice. Any termination under this Section 6 shall be
effective upon receipt of notice by Executive or Company, as the case may be, of
such termination or upon such other later date as may be provided herein or
specified by Company or Executive in the notice (the "Termination Date").
6.6 Effect of Termination.
6.6.1 Payment of Salary and Expenses Upon Termination. If the Term of this
Agreement is terminated, all benefits provided to Executive by Company hereunder
shall thereupon cease and Company shall pay or cause to be paid to Executive all
accrued but unpaid salary and vacation benefits. In addition, promptly upon
submission by Executive of his unpaid expenses incurred prior to the Termination
Date and owing to Executive pursuant to Article 5, reimbursement for such
expenses shall be made.
6.6.2 Termination for Disability. In the event of a termination under
Section 6.1.4 (for disability), Executive may be eligible for benefits under the
California State Disability Insurance program for his first six months of
disability. In addition Executive shall be eligible for the benefits provided
for under any long term disability insurance policy which Company may have as in
effect from time to time. Eligibility and benefits with regard to either
insurance program shall be governed by the provisions of the insurance program
or policy and shall not be the responsibility of Company.
6.6.3 Termination Without Cause or Termination by Executive for Good
Reason. If Company terminates Executive without cause or Executive terminates
for good reason under clause (a) of Section 6.3 only, the following shall apply:
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(a) So long as Executive does not compete with Company or its subsidiaries
in the gaming business prior to the end of the Term, Executive shall
be entitled to receive an amount equal to $700,000 per year through
the end of the Term, payable in accordance with Company's regular
salary payment schedule from time to time, plus any amounts payable
under Section 6.6.1 above, plus a continuation of health and
disability insurance coverage for a period of six (6) months after
termination, at Company's expense. Should Executive compete with
Company or its subsidiaries prior to the end of the Term, Executive
shall not be entitled to receive any additional payments from Company
with respect to periods after the commencement of any such competitive
activity under this Section 6.6.3 and all such obligations shall be
extinguished;
(b) In addition to those already vested, all unvested stock options that
would have vested on future Anniversary Dates of the Agreement shall
be deemed immediately and fully vested and exercisable by Executive;
and
(c) The "Covenant Not to Compete" set forth in Sections 7.4 below shall
not apply in any respect to Executive (except as the same may affect
his entitlement to payments under Section 6.6.3(a) hereof) and the
term of the "No Hire Away Policy" in Section 7.6 shall be limited to
six months from the date of termination.
In the event of a termination by Executive by reason of Section
6.3(b), the provisions of clauses (b) and (c) above shall apply but Executive
shall not be entitled to any severance payment.
6.6.4 Termination by Executive Upon Failure to be Promoted. If Executive
terminates this Agreement as a result of his failure to be promoted, then the
following shall apply:
(a) Employee shall be entitled to receive a severance payment equal to
$700,000, payable in one lump sum within ninety (90) days after
termination, plus any amounts payable in Section 6.6.1 above, plus a
continuation of health and disability insurance coverage for a period
of (six) months after termination, at Company's expense;.
(b) In addition to those already vested, that portion of the stock options
that would have vested on the next Anniversary Date of the Agreement
shall be deemed immediately vested and
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exercisable by Executive (i.e., bringing the total amount of options
which are vested to 75% of the total); and
(c) The "Covenant Not to Compete" and "No Hire Away Policy" set forth in
Sections 7.4 and 7.5 below shall not apply in any respect to
Executive.
6.7 Suspension. In lieu of terminating Executive's employment hereunder
for cause under Section 6.1, Company shall have the right, at its sole election,
to suspend the operation of this Agreement during the continuance of events or
circumstances under Section 6.1 for an aggregate of not more than 30 days during
the Term (the "Default Period") by giving Executive written notice of Company's
election to do so at any time during the Default Period. Company shall have the
right to extend the Term beyond its normal expiration date by the period(s) of
any suspension(s). Company's exercise of its right to suspend the operation of
this Agreement shall not preclude Company from subsequently terminating
Executive's employment hereunder. Executive shall not render services to any
other person, firm or corporation in the casino business during any period of
suspension. Executive shall be entitled to continued compensation pursuant to
the provisions hereof during the Default Period.
6.8 DEFRA Limitation. The payments that Executive shall be entitled to
receive hereunder and upon the exercise of his stock options shall in all events
be limited by the provisions of Section 280G of the Internal Revenue Code
("Code") and the regulations thereunder (or their then equivalents) and no
payment shall be made that would have the result of limiting the deductibility
of such payments by Company or that would result in the imposition of an excise
tax under Section 4999 of the Code.
6.9 Exercisability of Options. As provided in the Option Agreement, all
options terminate no later than ninety (90) days after the termination,
regardless of the cause of such termination.
ARTICLE 7
CONFIDENTIALITY
7.1 Nondisclosure of Confidential Material. In the performance of his
duties, Executive may have access to confidential records, including, but not
limited to, development, marketing, organizational, financial, managerial,
administrative and sales information, data, specifications and processes
presently owned or at any time hereafter developed or used by Company or its
agents or consultants that is not otherwise part of the public domain
(collectively, the "Confidential Material"). All such Confidential Material is
considered secret and is disclosed to Executive in confidence. Executive
acknowledges that the Confidential Material constitutes proprietary information
of Company which draws independent economic value, actual or potential, from not
being generally known to the public or to other persons who could obtain
economic value from its disclosure or use, and that Company has taken efforts
reasonable under the circumstances, of which this Section 7.1 is an example, to
maintain its secrecy. Except in the performance of his duties to
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Company or as required by a court order, Executive shall not, directly or
indirectly for any reason whatsoever, disclose, divulge, communicate, use or
otherwise disclose any such Confidential Material, unless such Confidential
Material ceases to be confidential because it has become part of the public
domain (not due to a breach by Executive of his obligations hereunder).
Executive shall also take all reasonable actions appropriate to maintain the
secrecy of all Confidential Information. All records, lists, memoranda,
correspondence, reports, manuals, files, drawings, documents, equipment, and
other tangible items (including computer software), wherever located,
incorporating the Confidential Material, which Executive shall prepare, use or
encounter, shall be and remain Company's sole and exclusive property and shall
be included in the Confidential Material. Upon termination of this Agreement, or
whenever requested by Company, Executive shall promptly deliver to Company any
and all of the Confidential Material, not previously delivered to Company, that
is in the possession or under the control of Executive.
7.2 Assignment of Intellectual Property Rights. Any ideas, processes, know-
how, copyrightable works, maskworks, trade or service marks, trade secrets,
inventions, developments, discoveries, improvements and other matters that may
be protected by intellectual property rights, that relate to Company's business
and are the results of Executive's efforts during the Term (collectively, the
"Executive Work Product"), whether conceived or developed alone or with others,
and whether or not conceived during the regular working hours of Company, shall
be deemed works made for hire and are the property of Company. In the event that
for whatever reason such Executive Work Product shall not be deemed a work made
for hire, Executive agrees that such Executive Work Product shall become the
sole and exclusive property of Company, and Executive hereby assigns to Company
his entire right, title and interest in and to each and every patent, copyright,
trade or service mark (including any attendant goodwill), trade secret or other
intellectual property right embodied in Executive Work Product. Company shall
also have the right, in its sole discretion to keep any and all of Executive
Work Product as Company's Confidential Material. The foregoing work made for
hire and assignment provisions are and shall be in consideration of this
agreement of employment by Company, and no further consideration is or shall be
provided to Executive by Company with respect to these provisions. Executive
agrees to execute any assignment documents Company may require confirming
Company's ownership of any of Executive Work Product. Executive also waives any
and all moral rights with respect to any such works, including without
limitation any and all rights of identification of authorship and/or rights of
approval, restriction or limitation on use or subsequent modifications.
Executive promptly will disclose to Company any Executive Work Product.
7.3 No Unfair Competition After Termination of Agreement. Executive hereby
acknowledges that the sale or unauthorized use or disclosure of any of Company's
Confidential Material obtained by Executive by any means whatsoever, at any time
before, during or after the Term shall constitute unfair competition. Executive
shall not engage in any unfair competition with Company either during the Term
or at any time thereafter.
7.4 Covenant Not to Compete. In the event this Agreement is terminated by
Company for cause under Section 6.1 above, or by Executive, for a reason other
than one
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specified in either Section 6.3 or 6.4 above, then for a period of one year
after the effective date of such termination, Executive shall not, directly or
indirectly, work for or provide services to or own an equity interest in any
person, firm or entity engaged in the casino gaming, card club or horseracing
business which competes against Company in any "market" in which Company owns or
operates a casino, card club or horseracing facility. For purposes of this
Agreement, "market" shall be defined as the area within a 100 mile radius of any
casino, card club or horseracing facility owned or operated by Company.
7.5 No Hire Away Policy. In the event this Agreement is terminated prior
to the normal expiration of the Term, either by Company for cause under 6.1
above, or by Executive, for a reason other than one specified in either Section
6.3 or 6.4 above, then for a period of one year after the effective date of such
termination, Executive shall not, directly or indirectly, hire any person known
to Executive to be an employee of Company or any of its subsidiaries (or any
person known to Executive to have been such an employee within six months prior
to such occurrence). In the case of a termination under Sections 6.2 and 6.3,
the period of the No Hire Away Policy shall be six months from the date of such
termination.
7.6 No Solicitation. During the Term and for a period of one year
thereafter, or for a period of one year after earlier termination of this
Agreement prior to expiration of the Term, and regardless of the reason for such
termination (whether by Company or Executive), Executive shall not directly or
indirectly solicit any employee of Company or any of its subsidiaries (or any
person who was such an employee within six months prior to such occurrence) or
encourage any such employee to leave the employment of Company or any of its
subsidiaries.
7.7 Non-Solicitation of Customers. During the Term and for a period of two
years thereafter, or for a period of two years after the earlier termination of
this Agreement prior to the expiration of the Term, and regardless of the reason
for such termination (whether by Company or Executive), Executive shall not
directly or indirectly use customer lists or confidential information to solicit
any customers of Company or its subsidiaries or any of their respective casinos
or card clubs, or knowingly encourage any such customers to leave Company's
casinos or card clubs or knowingly encourage any such customers to use the
facilities or services of any competitor of Company or its subsidiaries.
7.8 Irreparable Injury. The promised service of Executive under this
Agreement and the other promises of this Article 7 are of special, unique,
unusual, extraordinary, or intellectual character, which gives them peculiar
value, the loss of which cannot be reasonably or adequately compensated in
damages in an action at law.
7.9 Remedies for Breach. Executive agrees that money damages will not be a
sufficient remedy for any breach of the obligations under this Article 7 and
Article 2 hereof and that Company shall be entitled to injunctive relief (which
shall include, but not be limited to, restraining Executive from directly or
indirectly working for or having an ownership interest in any person engaged in
the casino, gaming or horseracing businesses in any market in which Company or
its affiliates owns or operates any such business, using or disclosing the
Confidential Material) and to specific performance as remedies for any such
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breach. Executive agrees that Company shall be entitled to such relief,
including temporary restraining orders, preliminary injunctions and permanent
injunctions, without the necessity of proving actual damages and without the
necessity of posting a bond or making any undertaking in connection therewith.
Any such requirement of a bond or undertaking is hereby waived by Executive and
Executive acknowledges that in the absence of such a waiver, a bond or
undertaking might otherwise be required by the court. Such remedies shall not be
deemed to be the exclusive remedies for any breach of the obligations in this
Article 7, but shall be in addition to all other remedies available at law or in
equity.
ARTICLE 8
ARBITRATION
In the event there is any dispute between Executive and Company which the
parties are unable to resolve themselves, including any dispute with regard to
the application, interpretation or validity of this Agreement or any dispute
with regard to any aspect of Executive's employment or the termination of
Executive's employment, both Executive and Company agree by entering into this
Agreement that the exclusive remedy for determining any such dispute, regardless
of its nature, will be by arbitration in accordance with the then applicable
rules of the American Arbitration Association; provided, however, the breach of
the obligation to provide services under this Agreement or of the obligations of
Article 7 may be enforced by an action for injunctive relief and damages in a
court of competent jurisdiction. In the event of any conflict between this
Agreement and the rules of the American Arbitration Association, the provisions
of this Agreement shall be determinative. In the event the parties are unable
to agree upon an arbitrator, the parties shall select a single arbitrator from a
list designated by the Los Angeles Office of the American Arbitration
Association of seven arbitrators all of whom shall be retired judges of the
Superior of appellate courts resident in Los Angeles who are members of the
"Independent List" of retired judges. If the parties are unable to select an
arbitrator from the list provided by the American Arbitration Association, then
the parties shall each strike names alternatively from the list, with the first
to strike being determined by lot. After each party has used three strikes, the
remaining name on the list shall be the arbitrator. This agreement to resolve
any disputes by binding arbitration shall extend to claims against any
shareholder or partner of Company, any brother-sister company, parent,
subsidiary or affiliate of Company, any officer, director, employee, or agent of
Company, or of any of the above, and shall apply as well to claims arising out
of state and federal statutes and local ordinances as well as to claims arising
under the common law. Unless mutually agreed by the parties otherwise, any
arbitration shall take place in Los Angeles County, California. In the event
the parties are unable to agree upon a location for the arbitration, the
location within Los Angeles County shall be determined by the arbitrator. The
prevailing party in such arbitration proceeding, as determined by the
arbitrator, and in any enforcement or other court proceedings, shall be entitled
to the extent permitted by law, to reimbursement from the other party for all of
the prevailing party's costs (including but not limited to the arbitrator's
compensation), expenses and attorneys' fees.
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ARTICLE 9
MISCELLANEOUS
9.1 Amendments. The provisions of this Agreement may not be waived,
altered, amended or repealed in whole or in part except by the signed written
consent of the parties sought to be bound by such waiver, alteration, amendment
or repeal.
9.2 Entire Agreement. This Agreement and the nonqualified Option Amendment
of even date herewith constitutes the total and complete agreement of the
parties and supersedes all prior and contemporaneous understandings and
agreements heretofore made, and there are no other representations,
understandings or agreements.
9.3 Counterparts. This Agreement may be executed in one of more
counterparts, each of which shall be deemed and original, but all of which shall
together constitute one and the same instrument.
9.4 Severability. Each term, covenant, condition or provision of this
Agreement shall be viewed as separate and distinct, and in the event that any
such term, covenant, condition or provision shall be deemed by an arbitrator or
a court of competent jurisdiction to be invalid or unenforceable, the court or
arbitrator finding such invalidity or unenforceability shall modify or reform
this Agreement to give as much effect as possible to the terms and provisions of
this Agreement. Any term or provision which cannot be so modified or reformed
shall be deleted and the remaining terms and provisions shall continue in full
force and effect.
9.5 Waiver or Delay. The failure or delay on the part of Company, or
Executive to exercise any right or remedy, power or privilege hereunder shall
not operate as a waiver thereof. A waiver, to be effective, must be in writing
and signed by the party making the waiver. A written waiver of default shall
not operate as a waiver of any other default or of the same type of default on a
future occasion.
9.6 Successors and Assigns. This Agreement shall be binding on and shall
inure to the benefit of the parties to it and their respective heirs, legal
representatives, successors and assigns, except as otherwise provided herein.
9.7 No Assignment or Transfer by Executive. Neither this Agreement nor any
of the rights, benefits, obligations or duties hereunder may be assigned or
transferred by Executive. Any purported assignment or transfer by Executive
shall be void.
9.8 Necessary Acts. Each party to this Agreement shall perform any further
acts and execute and deliver any additional agreements, assignments or documents
that may be reasonably necessary to carry out the provisions or to effectuate
the purpose of this Agreement.
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9.9 Governing Law. This Agreement and all subsequent agreements between
the parties shall be governed by and interpreted, construed and enforced in
accordance with the laws of the State of California.
9.10 Notices. All notices, requests, demands and other communications to be
given under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service, if personally served on the party to whom
notice is to be given, or 48 hours after mailing, if mailed to the party to whom
notice is to be given by certified or registered mail, return receipt requested,
postage prepaid, and properly addressed to the party at his address set forth as
follows or any other address that any party may designate by written notice to
the other parties:
To Executive: Paul Alanis
675 Burleigh Dr.
Pasadena, California 91105
with copy to: Cox, Castle & Nicholsen
2049 Century Park East, 28th Floor
Los Angeles, CA 90067-3284
Attn: Matt Wyman
To Company: Hollywood Park, Inc.
1050 South Prairie Avenue
Inglewood, California 90301
Attn: G. Michael Finnigan
with copy to: Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
Attn: Alvin G. Segel
9.11 Headings and Captions. The headings and captions used herein are
solely for the purpose of reference only and are not to be considered as
construing or interpreting the provisions of this Agreement.
9.12 Construction. All terms and definitions contained herein shall be
construed in such a manner that shall give effect to the fullest extent possible
to the express or implied intent of the parties hereby.
9.13 Counsel. Executive has been advised by Company that he should
consider seeking the advice of counsel in connection with the execution of this
Agreement and Executive has had an opportunity to do so. Executive has read and
understands this Agreement, and has sought the advice of counsel to the extent
he has determined appropriate.
9.14 Withholding of Compensation. Executive hereby agrees that Company may
deduct and withhold from the compensation or other amounts payable to Executive
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hereunder or otherwise in connection with Executive's employment any amounts
required to be deducted and withheld by Company under the provisions of any
applicable Federal, state and local statute, law, regulation, ordinance or
order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
EXECUTIVE COMPANY
/s/ Paul Alanis Hollywood Park, Inc., a Delaware corporation
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Paul Alanis
Social Security No: By: /s/ R.D. Hubbard
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Its: Chairman and CEO
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