Exhibit 10.38
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made on September 10, 1998,
by and between HOLLYWOOD PARK, INC. a Delaware corporation ("Company"), and MIKE
ALLEN, an individual ("Executive"), with respect to the following facts and
circumstances:
RECITALS
Executive is currently employed by Horseshoe Gaming, LLC ("Horseshoe").
Company desires to retain Executive as Senior Vice President and Chief Operating
Officer of the Gaming Division 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 Senior Vice President and Chief Operating Officer of the Gaming Division of
Company on the Effective Date (as hereinafter defined) and Executive hereby
accepts such engagement by Company upon the terms and conditions specified
below.
1.2. Term. The term of this Agreement (the "Term") shall commence on
June 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 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. If Paul Alanis
("Alanis") is not offered promotion to Chief Executive Officer of Company by
December 31, 1999 and as a result terminates his employment with Company by
March 31, 2000, then Executive may
terminate his employment with Company at any time within ninety (90) days
following Alanis' termination.
ARTICLE 2.
DUTIES OF EXECUTIVE
2.1. Duties. Executive shall perform all the duties and obligations
of Senior Vice President and Chief Operating Officer of the Gaming Division
subject to the control and supervision of the Chief Executive and Chief
Operating Officers 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
or Chief Operating Officer of Company. Executive shall report to the Chief
Operating Officer or the Chief Executive Officer of Company. In his capacity as
Chief Operating Officer of the Gaming Division, Executive shall have the
Marketing, Human Resources and MIS Department heads of such Division, as well as
other similar operating departments that may be created in the future, and all
Property General Managers reporting directly to Executive (it being understood
that they may have dotted line reporting obligations to the other corporate
officers as well). 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 and that he will spend up to six months on
site in connection with new gaming facilities opened or acquired by Company
during the Term. While living on site at new development projects, Executive
shall be provided with appropriate housing and a Company vehicle, at the
Company's expense.
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
2
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 interest in Horseshoe Gaming, LLC, which Executive, at the
termination of his employment with Horseshoe Gaming, LLC., will sell back to
such 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 $400,000 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 up to $200,000, $100,000 of which shall be based upon Company meeting its
EBITDA budget (as established by the Board) for the year in question and not
exceeding its capital budget for such year and the balance 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 based on meeting its EBITDA budget 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 200,000 shares of Company's common
stock, 150,000 of which shall
3
have an exercise price equal to the fair market value of such stock on the date
hereof and the remaining 50,000 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. The grant of 150,000 of such options (including the 50,000
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.
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).
4
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.
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
5
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 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).
6.4. Termination by Executive Upon Failure of Paul Alanis to be
Promoted. Executive may terminate his employment under this Agreement on thirty
(30) days prior notice to Company upon failure of Company to offer to designate
Paul Alanis as Chief Executive Officer on or before December 31, 1999, resulting
in his termination of employment with Company. Executive must elect to exercise
such termination right within ninety (90) days after Alanis terminates his
employment due to his failure to be offered promotion, 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,
6
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 Section 6.3 only, the following shall apply:
(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 $400,000 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 commencement of 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.
6.6.4. Termination by Executive Upon Failure of Alanis to be Promoted. If
Executive terminates this Agreement as a result of Alanis' failure to be
promoted, then Executive shall be entitled to receive the payments under Section
6.6.1 hereof.
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
7
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 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
8
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 the Executive Work Product. Company
shall also have the right, in its sole discretion to keep any and all of the
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 the 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 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.
9
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
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
10
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.
11
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 stock
option agreement 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.
12
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: Mike Allen
8408 Turtle Creek Circle
Las Vegas, NV 89113
with copy to Cox, Castle & Nicholson
2049 Century Park East, 28th Floor
Los Angeles, CA 90067-3284
Attn: Matt Wyman
To Company: Hollywood Park, Inc.
1050 South Prairie Avenue
Inglewood, CA 90301
Attn: G. Michael Finnigan
with copy to: Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067-4276
Attn: Al 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.
13
9.14. Withholding of Compensation. Executive hereby agrees that
Company may deduct and withhold from the compensation or other amounts payable
to Executive 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
HOLLYWOOD PARK, INC.,
/s/ Mike Allen a Delaware Corporation
- ---------------------------------
Mike Allen
By: /s/ R.D. Hubbard
-----------------------------
Its: Chairman and CEO
- --------------------------------- -----------------------------
Social Security Number
14