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EMPLOYMENT AGREEMENT
This Agreement is made as of the 1st day of May, 2000, by and between WMS
GAMING INC., a Delaware corporation, with offices at 3401 North California
Avenue, Chicago, Illinois 60618 (hereinafter called the "Corporation") and
ROBERT ROGOWSKI, an individual residing at 1340 Division Street, Highland Park,
Illinois 60035 (hereinafter called "Employee").
W I T N E S S E T H:
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WHEREAS, the Corporation desires to employ Employee and Employee is willing
to accept such employment on the terms and subject to the conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Employment by Corporation. The Corporation hereby agrees to employ
Employee to perform such duties on behalf of the Corporation and its affiliates
as the Chief Executive Officer, President, Chief Financial Officer or such
officer as may subsequently be designated by the Board of Directors of the
Corporation ("Management"), may from time to time determine, including without
limitation, duties with respect to financial and accounting matters relating to
the design, sales and marketing of gaming devices ("Game[s]") to be manufactured
and sold by the Corporation or by one or more of the other corporations under
common control with the Corporation (its "Affiliates"). The primary assignment
of Employee shall be Vice President - Finance and Controller.
2. Employee's Acceptance of Employment. Employee hereby accepts such
employment and agrees that throughout the period of his employment hereunder he
will devote his full time, attention, knowledge and skills, faithfully,
diligently and to the best of his ability, in furtherance of the business of the
Corporation and its Affiliates, he will perform the duties assigned to him
pursuant to Paragraph 1 hereof, subject, at all times, to the direction and
control of Management and he will do such reasonable traveling as may be
required of him in the performance thereof.
Employee shall at all times be subject to, observe and carry out such
rules, regulations, policies, directions and restrictions as the Corporation
shall from time to time establish. During the period of his employment by the
Corporation, Employee agrees to be bound by the Corporation's Ethics and
Conflicts of Interest Policy and any amendments adopted thereto, a copy of which
Employee hereby acknowledges he has received and read, and Employee agrees that
he shall not, without the prior written approval of Management, directly or
indirectly, accept employment or compensation from or perform services of any
nature for, any business enterprise other than the Corporation and its
Affiliates and such enterprises previously disclosed to the Corporation in
writing.
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3. Term. Employee shall be employed for a term ("Term") of one (1) year
commencing on the date hereof; provided, however, that during Employee's
employment hereunder, such term shall be deemed to be automatically extended
from time to time for an additional one (1) year period such that the term of
Employee's employment shall not be less than one (1) year nor greater than one
(1) year, unless his employment is terminated voluntarily by Employee or by the
Corporation for cause in accordance with Paragraph 6 hereof, in which case such
term shall terminate immediately. Each year of the Term is hereafter referred to
as an "Employment Year."
4. Compensation/Benefits.
4.1 The Corporation will pay to Employee as compensation for his
services hereunder a salary of One Hundred Sixty Thousand Dollars ($160,000).
Such salary may be adjusted from time to time as determined by Management and is
to be payable in equal installments no less frequently than semimonthly.
4.2 Employee shall also be entitled to receive an annual discretionary
bonus in an amount of up to fifty percent (50%) of Employee's then current base
salary. Such bonus shall be within the sole discretion of Management and will be
based upon the extent to which the Corporation and Employee achieve corporate
and personal performance criteria and objectives established by Management of
the Corporation for such fiscal year. Employee may be included, in the sole
discretion of Management, in such other profit sharing, incentive or other bonus
arrangements which may be in effect from time to time.
4.3 Employee shall be entitled to participate during the Term, to the
extent he is eligible under the terms and conditions thereof, in any pension,
retirement, disability, hospitalization, insurance, medical service, or other
employee benefit plan which is generally available to all employees of the
Corporation (including Execu-Care supplemental medical and life insurance
benefits) and which may be in effect from time to time during the period of his
employment. The Corporation shall be under no obligation to institute or
continue the existence of any such employee benefit plan.
5. Business Expenses. The Corporation shall reimburse Employee for all
authorized expenses reasonably incurred by him in accordance with the
Corporation's "Travel and Entertainment Policy and Procedure" and any amendment
thereof that the Corporation may adopt during his employment.
6. Termination. In addition to all other rights and remedies which the
parties may have under applicable law, Employee and the Corporation hereby
agree: that the Corporation may terminate this Agreement and the services of
Employee, effective upon the occurrence of any of the following events: (i) a
material failure by Employee to perform his obligations under this Agreement;
(ii) the death of Employee or his disability due to physical or mental illness
for a period of three (3) consecutive months; (iii) Employee fails to follow the
Corporation's "Ethics and Conflicts of Interest Policy," and any amendment
thereof that the Corporation may adopt during his employment; or (iv) in the
event that Employee shall act, whether with respect to his employment or
otherwise, in a manner which is in violation of the criminal laws of the United
States or any State or
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subdivision thereof (excluding minor violations) or which is reasonably likely
to result in the loss of a gaming license held by the Corporation or by any
Affiliate or in such entity's inability to become so licensed.
7. Non-Competition. In consideration of the Corporation's entering into
this Agreement:
7.1 Employee agrees that during the Term hereof and, (i) in the event
Employee voluntarily terminates his employment or the Corporation terminates
Employee's employment for cause, prior to the expiration of one (1) year
following such termination of Employee's employment, or (ii) in the event
Employee is terminated for reasons other than for cause, then for such period
(not to exceed one (1) year) as the Corporation continues to pay Employee's base
salary to him, he will not directly or indirectly own, manage, operate, join,
control, participate in, perform any services for, invest in, or otherwise be
connected with, in any manner, whether as an officer, director, employee,
consultant, partner, investor or otherwise, any business entity which is engaged
in the design, manufacture and/or sale of any gaming devices or any business
entity which is engaged in any other business in which the Corporation or any of
its Affiliates is engaged. Nothing herein contained shall be deemed to prohibit
Employee from investing his funds in securities of a company if the securities
of such company are listed for trading on a national stock exchange or traded in
the over-the-counter market and Employee's holdings therein represent less than
five (5) percent of the total number of shares or principal amount of other
securities of such company outstanding.
7.2 Employee agrees that Employee will not, during the Term hereof or
prior to the expiration of one (1) year following the termination of the
Employee's employment for any reason, without the written consent of the
Corporation, directly or indirectly, by action alone or in concert with others,
induce or influence, or seek to induce or influence any person who is engaged by
the Corporation or any of its Affiliates as an employee, agent, independent
contractor or otherwise, to terminate his employment or engagement, nor shall
Employee, directly or indirectly, through any other person, firm or corporation,
employ or engage, or solicit for employment or engagement, or advise or
recommend to any other person or entity that such person or entity employ or
engage or solicit for employment or engagement, any person or entity employed or
engaged by the Corporation.
8. Confidentiality Agreement.
8.1 As used herein, the term "Confidential Information" shall mean the
terms of this Employment Agreement and any and all information of the
Corporation and of its Affiliates (for purposes of Paragraphs 8, 9 and 10 of
this Agreement, the Corporation's Affiliates shall be deemed included within the
meaning of "Corporation"), including, but not limited to, all data,
compilations, programs, devices, strategies, or methods concerning or related to
(i) the Corporation's finances, financial condition, results of operations,
employee relations, amounts of compensation paid to officers and employees and
any other data or information relating to the internal affairs of the
Corporation and its operations; (ii) the terms and conditions (including prices)
of sales and offers of sales of the Corporation's products and services; (iii)
the terms, conditions
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and current status of the Corporation's agreements and relationship with any
customer or supplier; (iv) the customer and supplier lists and the identities
and business preferences of the Corporation's actual and prospective customers
and suppliers or any employee or agent thereof with whom the Corporation
communicates; (v) the trade secrets, manufacturing and operating techniques,
price data, costs, methods, systems, plans, procedures, formulas, processes,
hardware, software, machines, inventions, designs, drawings, artwork,
blueprints, specifications, tools, skills, ideas, and strategic plans possessed,
developed, accumulated or acquired by the Corporation; (vi) any communications
between the Corporation, its officers, directors, shareholders, or employees,
and any attorney retained by the Corporation for any purpose, or any person
retained or employed by such attorney for the purpose of assisting such attorney
in his or her representation of the Corporation; (vii) any other information and
knowledge with respect to all gaming developed or in any stage of development by
the Corporation; (viii) the abilities and specialized training or experience of
others who as employees or consultants of the Corporation during the Employee's
employment have engaged in the design or development of any such products; and
(ix) any other matter or thing, whether or not recorded on any medium, (a) by
which the Corporation derives actual or potential economic value from such
matter or thing being not generally known to other persons or entities who might
obtain economic value from its disclosure or use, or (b) which gives the
Corporation an opportunity to obtain an advantage over its competitors who do
not know or use the same.
8.2 Employee acknowledges and agrees that the Corporation is engaged
in the highly competitive gaming device business and has expended, or will
expend, significant sums of money and has invested, or will invest, a
substantial amount of time to develop and maintain the secrecy of the
Confidential Information. The Corporation has thus obtained, or will obtain, a
valuable economic asset which has enabled, or will enable, it to develop an
extensive reputation and to establish long-term business relationships with its
suppliers and customers. If such Confidential Information were disclosed to
another person or entity or used for the benefit of anyone other than the
Corporation, the Corporation would suffer irreparable harm, loss and damage.
Accordingly, Employee acknowledges and agrees that, unless the Confidential
Information becomes publicly known through legitimate origins not involving an
act or omission by Employee:
(i) the Confidential Information is, and at all times
hereafter shall remain, the sole property of the
Corporation;
(ii) Employee shall use his best efforts and the utmost
diligence to guard and protect the Confidential Information
from disclosure to any competitor, customer or supplier of
the Corporation or any other person, firm, corporation or
other entity;
(iii) unless the Corporation gives Employee prior express
written permission, during his employment and thereafter,
Employee shall not use for his own benefit, or divulge to
any competitor or customer or any other person, firm,
corporation, or other entity, any of the Confidential
Information which Employee may obtain, learn about, develop
or be entrusted with as a result of Employee's employment by
the Corporation; and (iv) except in the ordinary course of
the Corporation's business, Employee shall not seek or
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accept any Confidential Information from any former, present
or future employee of the Corporation.
8.3 Employee also acknowledges and agrees that all documentary and
tangible Confidential Information including, without limitation, such
Confidential Information as Employee has committed to memory, is supplied or
made available by the Corporation to the Employee solely to assist him in
performing his services under this Agreement. Employee further agrees that after
his employment with the Corporation is terminated for any reason:
(i) Employee shall not remove from the property of the
Corporation and shall immediately return to the Corporation,
all documentary or tangible Confidential Information in his
possession, custody, or control and not make or keep any
copies, notes, abstracts, summaries, tapes or other record
of any type of Confidential Information; and
(ii) Employee shall immediately return to the Corporation
any and all other property of the Corporation in his
possession, custody or control, including, without
limitation, any and all keys, security cards, passes, credit
cards and marketing literature.
9. Invention Disclosure. Employee agrees to disclose to the Corporation
promptly and fully all ideas, inventions, discoveries, developments or
improvements ("Inventions") that may be made or conceived by him and all
"Intellectual Material" (as defined below) that may be created or developed by
him (whether such Inventions or "Intellectual Material" are developed solely by
him or jointly with others) either during his employment by the Corporation or
during a period of one (1) year after the termination of his employment with the
Corporation which either (i) in any way is connected with or related to the
actual or contemplated business, work, research or undertakings of the
Corporation or (ii) results from or is suggested by any task, project or work
that he may do for, in connection with, or on behalf of the Corporation.
Employee agrees that such Inventions and "Intellectual Material" shall become
the sole and exclusive property of the Corporation and Employee hereby assigns
to the Corporation all of his rights to any such Inventions and "Intellectual
Material." As used herein, "Intellectual Material" shall include, but shall not
be limited to, ideas, titles, themes, production ideas, methods of presentation,
artistic renderings, sketches, plots, music, lyrics, dialogue, phrases, slogans,
catch words, characters, names and similar literary, dramatic and musical
material, trade names, trademarks and service marks and all copyrightable
expressions in audio visual works, computer software, electronic circuitry and
all mask works for integrated circuits. With respect to Inventions and
Intellectual Material, Employee shall during the period of his employment
hereunder and at any time and from time to time hereafter (a) execute all
documents requested by the Corporation for vesting in the Corporation the entire
right, title and interest in and to the same, (b) execute all documents
requested by the Corporation for filing and prosecuting such applications for
patents, trademarks and/or copyrights as the Corporation, in its sole
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discretion, may desire to prosecute, and (c) give the Corporation all assistance
it reasonably requires, including the giving of testimony in any suit, action or
proceeding, in order to obtain, maintain and protect the Corporation's right
therein and thereto. If any such assistance is required following the
termination of Employee's employment with the Corporation, the Corporation shall
reimburse Employee for his lost wages or salary and the reasonable expenses
incurred by him in rendering such assistance. Anything contained in this
paragraph to the contrary notwithstanding, this paragraph does not apply to an
Invention or Intellectual Material for which no equipment, supplies, facilities,
or trade secret information of the Corporation was used and which was developed
entirely on the Employee's own time, unless the Invention or Intellectual
Material relates: (i) to the business of the Corporation, (ii) to the
Corporation's actual or demonstrably anticipated research or development, or
(iii) the Invention or Intellectual Material results from any work performed by
the Employee for the Corporation.
10. Remedies. Employee acknowledges and agrees that the business of the
Corporation is highly competitive and that the provisions of Paragraphs 7, 8 and
9 are reasonable and necessary for the protection of the Corporation and its
Affiliates and that any violation of such covenants would cause immediate,
immeasurable and irreparable harm, loss and damage to the Corporation not
adequately compensable by a monetary award. Accordingly, the Employee agrees,
without limiting any of the other remedies available to the Corporation, that
any violation of said covenants, or any one of them, may be enjoined or
restrained by any court of competent jurisdiction, and that any temporary
restraining order or emergency, preliminary or final injunctions may be issued
by any court of competent jurisdiction, without notice and without bond. In the
event any proceedings are commenced by the Corporation against Employee for any
actual or threatened violation of any of said covenants and if the Corporation
prevails in such litigation, then, Employee shall be liable to the Corporation
for, and shall pay to the Corporation, all costs and expenses of any kind,
including reasonable attorneys' fees, which the Corporation may incur in
connection with such proceedings.
11. Change of Control. If at any time during the term of this Agreement
(a) any individuals who presently constitute the Board of Directors of the
Corporation, or who have been recommended for election to the Board of the
Corporation by two-thirds of the Board of the Corporation consisting of
individuals who are either presently on such Board or such recommended
successors cease for any reason to constitute at least a majority of such Board
(such event being hereafter referred to as a "Change of Control"), and (b)
thereafter, the Corporation breaches its obligations to Executive under this
Agreement, and (c) Executive gives written notice to the Corporation within 60
days after such breach of his election to terminate his employment hereunder,
the Corporation shall pay to Executive within 15 days after Executive's delivery
of such notice, as severance pay and liquidated damages, in lieu of any other
rights or remedies which might otherwise be available to him under this
Agreement, and without mitigation of any kind or amount, whether or not
Executive shall seek other employment, a lump sum equal in amount to the lesser
of (i) the annual base salary payable to Executive pursuant to subsection 4.1 of
this Agreement, or (ii) the maximum amount which could be payable to Executive
without any portion of such amount being subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended. In addition, in
such event all unexpired options to purchase securities of the Corporation
granted to Executive before the Change of Control shall, if unvested, vest fully
on the date of the Change of Control, notwithstanding any vesting provisions of
such options. The payments provided for this Section 11 shall be paid in full,
without discount to present value.
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12. Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the matters set forth herein and no amendment
or modification hereof shall be valid or binding unless made in writing and
signed by both parties hereto.
13. Notices. Any notice, required, permitted or desired to be given
pursuant to any of the provisions of this Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered in person or sent by
certified mail, return receipt requested, postage and fees prepaid as follows:
if to the Corporation at:
its address set forth above,
Attention: Brian R. Gamache, President
and, if to Employee, at his address set forth above.
Either of the parties hereto may at any time and from time to time change
the address to which notice shall be sent hereunder by notice to the other party
given as provided herein. The date of the giving of any notice hereunder shall
be the date delivered or if sent by mail, shall be the date of the posting of
the mail.
14. Non-Assignability. Neither this Agreement nor the right to receive any
payments hereunder may be assigned by Employee. This Agreement shall be binding
upon Employee and inure to the benefit of his heirs, executors and
administrators and be binding upon the Corporation and inure to the benefit of
its successors and assigns.
15. Choice of Law And Forum. This Agreement shall be governed, interpreted
and construed under the laws of the State of Illinois without regard to its
conflict of law principles. The parties agree that any dispute or litigation
arising in whole or in part hereunder shall, at the option of the Corporation,
be litigated in any state or Federal court of competent subject matter
jurisdiction sitting in Cook County, Illinois, to the jurisdiction of which and
venue in which Employee irrevocably consents.
16. Waiver. No course of dealing nor any delay on the part of any party in
exercising any rights hereunder shall operate as a waiver of any such rights. No
waiver of any default or breach of this Agreement shall be deemed a continuing
waiver or a waiver of any other breach or default.
17. Severability. If any provision of this Agreement including any
paragraph, sentence, clause or part thereof, shall be deemed contrary to law or
invalid or unenforceable in any respect by a court of competent jurisdiction,
the remaining provisions of such paragraph, sentence, clause or part thereof
shall not be affected, but shall, subject to the discretion of such court,
remain in full force and effect and any invalid and unenforceable provisions
shall be deemed, without further action on the part of the parties hereto,
modified, amended and limited to the extent necessary to render the same valid
and enforceable.
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18. Survival at Termination. The termination of Employee's employment
hereunder shall not affect his obligations to the Corporation hereunder which by
the nature thereof are intended to survive any such termination including,
without limitation, Employee's obligations under Paragraphs 7, 8 and 9.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above set forth.
WMS GAMING INC.
By: /s/ BRIAN R. GAMACHE
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Brian R. Gamache
President
EMPLOYEE:
/s/ ROBERT ROGOWSKI
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Robert Rogowski
