CONSULTING AND CONFIDENTIALITY
AGREEMENT
This Consulting
and Confidentiality Agreement (this “Agreement”) is
entered into as of September 19, 2005 and has an effective date of
September 19, 2005, and is by and between by and between
MIKOHN GAMING CORPORATION , a Nevada corporation and its
subsidiaries and affiliates doing business as PROGRESSIVE GAMING
INTERNATIONAL CORPORATION (“PGIC”) with its
principal place of business located at 920 Pilot Road, Las Vegas,
Nevada 89119, and Michael F. Dreitzer, an individual
(“Contractor”).
WHEREAS, PGIC
desires to engage a contractor for the performance of certain
services; and
WHEREAS,
Contractor desires to perform such services for PGIC.
NOW THEREFORE
, for valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
|
1.
|
|
Engagement of
Services.
|
|
|
A.
|
|
PGIC hereby engages Contractor to
perform the services described in this Agreement, and Contractor
agrees to perform services for PGIC as follows: Provide PGIC with
consulting services for up to 40 hours per month during the Term
(as defined below) with regard to PGIC’s regulatory matters,
and with any additional assignments and tasks as shall be assigned
to Contractor by PGIC (the “Work,” which shall also
include any services, material, output, work, or work product
arising out of this Agreement or produced in connection with this
Agreement).
|
|
|
|
|
|
|
|
B.
|
|
Time is of the essence. The Work
shall be performed in a good, workman-like manner in accordance
with the standards of Contractor’s profession and such other
accepted standards as may be applicable to Work of this kind.
Contractor shall devote the necessary time and attention to the
Work as is reasonably required to diligently, timely, efficiently,
and professionally complete the Work no later than the time
necessary or required by deadlines.
|
|
|
|
|
|
|
|
C.
|
|
All
Work must meet with PGIC’s approval, which is to be
determined in PGIC’s sole discretion, which discretion shall
not to be unreasonably withheld.
|
|
|
|
|
|
|
|
D.
|
|
PGIC specifically selected
Contractor to perform the Work based upon PGIC receiving
Contractor’s personal service and therefore Contractor may
not subcontract or otherwise delegate its obligations under this
Agreement without PGIC’s prior written consent and any
attempted assignment contrary to this provision shall be
void.
|
|
|
|
|
|
|
|
E.
|
|
Contractor acknowledges that PGIC
does business in a highly regulated gaming industry and that
certain suitability requirements for Contractor must be strictly
met in order to perform its Services for PGIC. Accordingly,
Contractor shall submit to all PGIC requested screening, including
but not limited to any or all of the following; alcohol &
substance abuse screening, fingerprinting, personal history
(including criminal background) and/or personal financial
disclosures (collectively, “Prerequisite Screening”).
The Prerequisite Screening is a condition precedent to this
Agreement and/or performing any Work under this Agreement.
Contractor further agrees to execute any and all releases for PGIC
to complete the Prerequisite Screening. Should Contractor not
successfully complete and/or pass the Prerequisite Screening or any
later screenings, this Agreement shall be immediately terminated
without any liability to PGIC or Contractor
|
1
|
2.
|
|
Compensation and
Term.
|
|
|
A.
|
|
Fees. PGIC will pay Contractor for
complete and full performance for all Work specified in this
Agreement and for all related tasks the amount of Six Thousand Five
Hundred and 00/100 U.S. Dollars ($6,500.00) per month
(“Compensation”). The Compensation is inclusive of any
federal, state, municipal and other governmental taxes, franchise,
sales, use, or other taxes (included but not limited to value added
taxes) now or hereafter imposed on the Contractor by any tax
authority.
|
|
|
|
|
|
|
|
B.
|
|
Expenses.
Contractor will be
reimbursed pursuant to PGIC’s standard policy as may be
modified from time to time at PGIC’s sole discretion for any
reasonable expenses incurred in connection with the performance of
the Work. All expenses must be pre-approved by PGIC, and Contractor
shall keep full and accurate records and documentation to
substantiate the amounts claimed in any invoice, which records
shall be made available to PGIC for inspection at all
times.
|
|
|
|
|
|
|
|
C.
|
|
Benefits.
During the Term of this
Agreement PGIC shall provide Contractor with mobile phone, handheld
email and email service similar to that provided to employees of
PGIC. Contractor shall be responsible for any COBRA payments he may
incur for maintaining health insurance.
|
|
|
|
|
|
|
|
D.
|
|
Contractor’s Financial
Obligations. Contractor shall have full
responsibility for the payment of all federal, state and local
taxes and contributions, including penalties and interest, imposed
pursuant to unemployment insurance, social security, income tax,
gross income tax, workmen’s compensation or any other similar
statute, and Contractor shall be solely responsible for any
liability to third parties resulting from the negligent or
intentional acts or omissions of Contractor, its representatives,
agents, employees or subcontractors arising from or occurring in
the course of the Work.
|
|
|
|
|
|
|
|
E.
|
|
Payment Procedure.
Contractor shall be paid
Compensation every two weeks in accordance with Company’s
customary paydays.
|
|
|
|
|
|
|
|
F.
|
|
Term. The term of this Agreement shall be
one (1) year (the “Term”). Company may terminate
this Agreement at any time for any reason or no reason at all. In
the event PGIC terminates this Agreement without cause, Contractor
shall be entitled to receive the Compensation for the remaining
duration of the original Term. Contractor reserves the right to
terminate this Agreement at any time upon thirty (30) days
written notice to PGIC with no further liability or obligation to
either party. Notwithstanding anything to the contrary in this
Agreement, PGIC shall have the sole and exclusive right and option
to terminate this Agreement by written notice to Contractor, and
thereupon this Agreement shall terminate and become void and there
shall be no liability on the part of either party (excepting only
any provision of this Agreement which provides for its survival
upon any termination of this Agreement), upon the occurrence of any
of the following “for cause” events:
|
|
|
1)
|
|
Contractor’s failure to timely
apply for, obtain and/or maintain any and all licenses, permits,
approvals and authorizations from any Regulator necessary for
Contractor to perform the obligations and duties of this Agreement
and/or to comply with applicable laws;
|
|
|
|
|
|
|
|
2)
|
|
A
final order in writing by any Regulator requiring the termination
of this Agreement;
|
|
|
|
|
|
|
|
3)
|
|
The
reasonable belief of PGIC that the continuation of this Agreement
will have a detrimental impact on the ability of PGIC or its
parent, subsidiaries or affiliates to be qualified or to hold or
maintain any license, permit, approval or authorization issued or
to be granted by any Regulator;
|
|
|
|
|
|
|
|
4)
|
|
The
commission of any act or anything that is or shall be an offense
involving moral turpitude under federal, state or local laws, or
which brings Contractor into public disrepute, contempt, scandal or
ridicule, or which insults or offends the community;
|
2
|
|
5)
|
|
Breach of any of the confidentiality
or non-disparagement provisions of this Agreement; or
|
|
|
|
|
|
|
|
6)
|
|
Disapproval of this Agreement by any
Regulator having jurisdiction over such matters.
|
|
|
G.
|
|
Right to Withhold
Payments. Regardless of whether PGIC withholds
payments, Contractor shall have the obligation to convey to PGIC
all Work, including all source code, plans, records, drawings,
reports and writings of any kind (if any) for the Work. In addition
to its right to withhold payments, PGIC may withhold any payment in
whole or part to protect itself from or in the event of
(i) defective Work, (ii) third-party claims arising from
Contractor’s performance of the Work, (iii) failure of
Contractor to make payments properly to any of its subcontractors,
(iv) evidence of fraud, over-billing or overpayment discovered
upon audit, or (v) unsatisfactory or untimely performance of
the Work.
|
|
3.
|
|
Independent Contractor
Relationship. Contractor and PGIC understand,
acknowledge and agree that Contractor’s relationship with
PGIC will be that of an independent contractor and nothing in this
Agreement is intended to or should be construed to create a
partnership, joint venture, or employment relationship. Contractor
further represents that Contractor meets the requirements of an
Independent Contractor as set forth in Internal Revenue Service
Revenue Ruling 87-41. Further, Contractor shall not have any
authority to act, or attempt to act, or represent itself, directly
or by implication, as an agent of PGIC or in any manner assume or
create, or attempt to assume or create, any obligation on behalf of
or in the name of PGIC, except as provided by PGIC, nor will either
be deemed the agent, representative or employee of the
other.
|
|
4.
|
|
Trade Secrets — Intellectual
Property Rights .
|
|
|
A.
|
|
Disclosure of
Inventions . Contractor agrees to disclose
promptly in writing to PGIC, or any person designated by PGIC,
every invention, including but not limited to computer programs,
processes, know-how and other copyrightable and/or patentable
material, which is conceived, made or reduced to practice by
Contractor within the scope of the Work under this Agreement.
Contractor represents that Contractor’s performance of all of
the terms of this Agreement does not and will not breach any
agreement to keep in confidence proprietary information, knowledge
or data of any third party and Contractor will not disclose to
PGIC, or induce PGIC to use, any confidential or proprietary
information belonging to third parties unless such use or
disclosure is authorized in writing by such owners. Contractor
shall retain title to any prior works belonging to Contractor, and
to that extent Contractor represents that no property, inventions
or copyrighted works belonging to Contractor have been incorporated
into the Work. If Contractor has incorporated any property of
Contractor’s into the Work, such previously owned property is
hereby transferred to PGIC.
|
|
|
|
|
|
|
|
B.
|
|
Non-Disclosure of Confidential
Information .
|
|
|
1)
|
|
Contractor agrees, during the Term
and forever thereafter, to keep confidential all information
provided by PGIC (excepting only such information as is already
known to the public, without breach of this Agreement), and
including any such information and material relating to any
customer, vendor, licensor, licensee, or other party transacting
business with PGIC, and not to release, use or disclose the same
except with the prior written permission of PGIC. Contractor
recognizes and acknowledges that the list of PGIC’s customers
and clients, as it may exist from time to time, and PGIC’s
financial information, are valuable, confidential, special, and
unique assets and trade secrets of PGIC’s business.
Contractor will not, during or after the Term, disclose the list of
PGIC’s customers and/or clients, or PGIC’s financial
information, or any part thereof, or any other trade secret, to any
person, firm, corporation, association or other entity for any
reason or purpose whatsoever.
|
|
|
|
|
|
|
|
2)
|
|
Contractor further agrees to
consider all specific software, company and personal
data,
|
3
|
|
|
|
regulatory data and information,
investigative data and information, artwork and art techniques,
programming techniques, project concepts, planned projects, story
concepts, game concepts, toys, models, drawings, photographs,
animation, cinematography, video, marketing strategies, planned
projects, unique hardware, hardware concepts, hardware designs,
terms of agreements with third parties, methods or techniques for
acquiring materials for various projects, data search and retrieval
systems, computer processing systems and techniques, systems
design, project design, routine design, algorithms of any sort,
programming of any sort, interface design, layout or writing,
operating instructions, or any other type of work or intellectual
property in any language, on any platform, for any operating
system, in any medium whatsoever, to be confidential information,
trade secrets and the exclusive property of PGIC which will not be
converted or disclosed to anyone for any purpose whatsoever. All
records, files, memoranda, reports, price lists, customer lists,
drawings, plans, sketches, documents, equipment, and the like,
relating to the business of PGIC, which Contractor shall use or
prepare or come into contact with, shall remain the sole property
and trade secret of PGIC. Any property described or mentioned in
this section is jointly or separately referred to as the
“Intellectual Property” in this Agreement. Any
material, document, data, plan, information, report, memorandum or
writing of any kind whatsoever, in any media whatsoever, described
or mentioned in this section is jointly or separately referred to
as the “Confidential Information” in this Agreement.
Those items constituting Intellectual Property may also constitute
Confidential Information, and vice versa.
|
|
|
|
|
|
|
|
3)
|
|
Contractor agrees that any
information that is in the nature of Confidential Information
defined in this section that either party receives from any third
party and/or which either party is bound, contractually, or by
common custom or usage in trade to keep in confidence shall also be
considered “Confidential Information” by both
parties.
|
|
|
|
|
|
|
|
4)
|
|
Contractor agrees to use the
Intellectual Property and/or Confidential Information solely to
perform the project hereunder pursuant to the terms of this
Agreement. Contractor’s obligations with respect to the
Intellectual Property and Confidential Information also extend to
any third party’s proprietary or confidential information
disclosed to Contractor in the course of providing services to
PGIC.
|
|
|
|
|
|
|
|
5)
|
|
Contractor will hold all
Confidential Information in
|
|
