Exhibit 10.43
PRIVILEGED AND
CONFIDENTIAL
SHARED SERVICES
AGREEMENT
This Shared Services Agreement is made as of
January 1, 2008 (the “Effective Date”)
between Herbst Gaming, Inc. (“HG”), a Nevada
corporation and collectively, Berry-Hinckley Industries, a Nevada
corporation and Terrible Herbst, Inc. (collectively,
“TH”), a Nevada corporation. HG and TH are sometimes
individually referred to as a “Part” and
collectively as the “Parties.”
Preliminary
Statements
WHEREAS, subject to the terms and conditions
set forth herein, TH desires to reimburse HG for certain employees
of HG which are listed on the attached Exhibit A (the
“Employees”) and perform services for TH as
requested from time to time by TH (the
“Services”); and
WHEREAS, subject to the terms and conditions
set forth herein, HG desires that such Employees perform
such Services for TH and charge TH for the costs associated with
such Services.
Agreement
NOW THEREFORE, in consideration of the terms
and conditions set forth below and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1.
Specifications of Work.
1.1 General Services. The Parties agree
that the general scope and results of the Services to be
performed by the Employees shall be determined by TH and consist
primarily of the day-to-day functions of TH.
1.2
Substitution of Individuals. In the event that an Employee
resigns as an employee of HG or has been terminated by HG as an
employee (“Termination Event”), HG shall provide
notice of such Termination Event to TH. If an Employee is subject
to a Termination Event: (i) HG shall use its reasonable
efforts to replace or substitute another individual as an Employee
but shall not have any liability to TH for its failure to do so;
(ii) HG shall provide written notice to TH of such replacement
or substitute Employee; and (iii) the Parties shall consent in
writing to the amendment of the attached Exhibit A ,
including the salary, the benefit cost and the Allocation
Percentage attributable to such replacement or substituted
Employee, which shall not be unreasonably withheld. If an Employee
is subject to a Termination Event and if HG has not replaced or
substituted such Employee, all references to such Employee and
costs allocations to such Employee shall be deemed automatically
deleted from the attached Exhibit A.
2.
Term. Subject to the terms and conditions set forth
herein, this Agreement shall commence on the Effective Date and
continue in full force and effect for one year (the
“Term”),
1
unless
terminated as provided herein, and the Term shall, unless
terminated by mutual written agreement by the Parties, be
automatically extended for an additional one year
period.
3.
Fees.
3.1
Consideration.
(a)
In consideration of furnishing the Services, TH shall pay to HG a
fee ( the “Fee”) in amount equal to the
Allocation Percentage multiplied by the Employees’ salaries
plus the costs of the benefits, including, without limitation, the
costs of group health insurance and disability insurance (the
“Benefits”), as set forth on the attached
Exhibit A . The Allocation Percentage is based on the
percentage of employees employed by TH and HG, respectively, as set
forth in Exhibit A.
(b)
By January 15 of each successive year, the parties shall
submit the following: (i) a list of Employees currently
employed; (ii) the total amount of the Benefits for said
Employees for the preceding year; (iii) the total number of
employees employed by each entity, respectively; and (iv) the
percentage of employees employed by each entity respectively. The
Fee for the following year shall then be calculated based on
(i) – (iv) and Exhibit A shall be
amended accordingly.
3.2
Payment. The Fees shall be paid in arrears monthly no later
than the tenth day of each month for the immediately preceding
calendar month, and if not paid by the end of the immediately
preceding calendar month shall be deemed a default hereunder. All
Fees not paid on or prior to such due date shall be subject to a
monthly late charge of eight percent (8%) of the unpaid
balance.
4.
Ownership Rights. All right, title and interest in
and to all products, services and materials provided to TH by the
Employees under this Agreement shall be and remain the property of
TH exclusively. HG shall have no right, title or interest in or to
any products, services or materials that are produced in connection
with the Services performed by the Employees pursuant to the terms
of this Agreement. With specific regard to Sean Higgins, that he is
a shared Employee shall not impair, limit or waive the
attorney-client relationship existing between him and TH, and the
privileges and confidentiality related thereto. Notwithstanding the
above, HG shall retain all rights, title and interest to any and
all intellectual property that it utilizes or may utilize as part
of the Services.
5.
Termination.
5.1
Default. If either Party (the “Defaulting
Party”) materially defaults in the performance of its
obligations under this Agreement, and if such default is not cured
within 15 days after written notice is given to the Defaulting
Party specifying the default, then the other Party may, by giving
written notice to the Defaulting Party, terminate this Agreement as
of the date specified in the notice of termination.
5.2
Notice by TH. TH shall have the right to terminate this
Agreement by giving written notice to HG as of the date specified
in such notice of termination; provided that such notice is given
at least 30 days prior to the effective date of
termination.
2
5.3
Payments. Upon termination of this Agreement pursuant to
Section 5.1 or 5.2 , TH’s sole remaining
obligations, except as provided for in Section 11.8 ,
shall be to pay the Fees and late charges relating to the Services
prior to the date of such termination.
5.4
Assistance. Upon any termination of this Agreement, HG will
assist and comply with TH’s reasonable directions to cause
the orderly transition and migration of the Services to TH or a
third party contractor to whom TH chooses to transfer the
Services.
6.
Liability.
6.1
Indemnification. Except as provi
| 
