EXHIBIT
10.3
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Mark L. Yoseloff
THIS AMENDED AND RESTATED AGREEMENT
(the “Agreement”)
is made and entered into as of the 31
st day of December, 2008, by and between Shuffle
Master, Inc., a Minnesota corporation (the "Company"), and Mark L.
Yoseloff (the "Employee"), a resident of the State of
Nevada.
RECITALS:
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The Company is
in the business of developing, manufacturing, distributing and
otherwise commercializing gaming equipment, games, and operating
systems for gaming equipment and related products and services
throughout the United States and in Canada and other countries (the
"Business "
).
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The Company and
Employee want to create a Fixed employment relationship that
protects the Company with appropriate confidentiality and
non-compete covenants and rewards the Employee for performing his
obligations for the full term of this contract or such shorter term
as may be created by his earlier termination by the Company or its
successors pursuant to this Agreement.
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The Company and
employee desire that Employee be employed by the Company on the
terms and conditions of this Agreement.
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Nothing
contained in this Agreement precludes the Company and Employee from
extending, renegotiating, or otherwise modifying Employee's
employment relationship by mutual agreement of the Company and
Employee.
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The Company and
Employee have previously entered into an employment agreement dated
February 23, 2004, as amended on June 5, 2007 and July 10, 2008
(the “Previous Agreement”).
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The Company and
Employee desired to amend and restate the Previous Agreement solely
in order to make changes to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the
“Code”).
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AGREEMENT
In consideration of the mutual promises
contained herein, Employee and the Company agree as
follows:
1. Employment. The Company hereby employs Employee as its Chief
Executive Officer and Chairman of the Board of Directors. Employee
shall perform the duties of those positions and shall perform such
other related duties as the Company's Board of Directors may direct
from time to time. Employee's employment with the Company is for
the period beginning February 23, 2004 through October 31,
2009 , but may be terminated earlier in accordance with
the provisions of this Agreement, or extended or otherwise modified
by the mutual agreement of Employee and the Company.
2. Salary and Benefits. During the period
from February 23, 2004 through October 31, 2009. (a) Employee shall
be paid an annual base salary of Four Hundred Thousand Dollars
($400,000.00), paid in the same intervals as other employees of the
Company; and (b) for each fiscal year during which Employee is
employed through October 31, 2009, Employee will be eligible to
receive an executive bonus in accordance with the terms and
conditions of the executive bonus program as authorized each year
by the Board of Directors of the Company. Employee has received a
stock option grant to purchase one hundred sixty-five thousand
(165,000) shares of the Company's common stock in accordance with,
and subject to, the terms and conditions imposed by the Board of
Directors at its February 23rd, 2004 meeting and the Company's
Employee Stock Option Plans. This stock option grant will vest and
become exercisable in accordance with the terms and conditions
imposed by the Board of Directors including the
following:
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Fifty-five
thousand (55,000) shares will become exercisable the earlier of
October 31 st 2005 or the date on which the Company's closing
stock price has increased by thirty (30) per cent from its closing
price on February 23 rd 2004.
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Fifty- five
thousand (55,000) shares will become exercisable the earlier of
October 31 st 2005, or the date on which the Company's closing
stock price has increased by forty (40) per cent from its closing
price on February 23 rd 2004.
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Fifty-five
thousand (55,000) shares will become exercisable the earlier of
April 30 `h
, 2006, or the date on which the
Company's closing stock price has increased by fifty (50) per cent
from its closing price on February 23 rd ,
2004.
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The Board does not anticipate making additional
stock option grants to the Employee during the term of this
contract. However, future Stock Option grants to the Employee are
at the discretion of the Company's Board of Directors. Employee's
salary is set on the expectation that (except for vacation days and
holidays) Employee's full time will be devoted to Employee's duties
hereunder. In addition, in the event that the Company's
shareholders approve a restricted stock plan, the Company's Board
of Directors will develop a performance based bonus plan that
provides the employee with an opportunity to receive shares of
restricted stock. The Company agrees to provide Employee with the
benefits it provides its executive team. Employee will not,
however, be eligible to participate in the Company's non-executive
bonus program.
3. Strategic Performance Bonus.
The Board of Directors of the
Company believes that long-range, strategic planning is among the
most important duties of the Company's Chief
Executive Officer, including identifying and
working toward the successful growth and diversification of the
Company and the creation and maintenance of a succession plan for
the Company's executives. In order to motivate and reward Employee
regarding these duties, the Company's Board of Directors, in its
discretion, may grant employee special bonuses based upon specific
factors determined by the Company's Board of Directors from time to
time and communicated to Employee.
4.
Outside Consulting.
Employee shall devote Employee's
full-time and best efforts to the Company. Employee may render
consulting services to other businesses from time to time if
Employee first obtains the consent of the Board of Directors of the
Company.
5.
Non-competition.
In consideration of the provisions
of this Agreement, Employee shall not, while employed full-time by
the Company or its successor:
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directly or
indirectly own, manage, operate, participate in, consult with or
work for any business which is engaged in the Business.
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either alone or
in conjunction with any other person, partnership or business,
directly or indirectly, solicit or divert or attempt to solicit or
divert any of the employees or agents of the Company or its
affiliates or successors to work for or represent any competitor of
the Company or its affiliates or successors or to call upon any of
the customers of the Company or its affiliates or
successors.
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In further consideration of the provisions of
this Agreement Employee is entering into a Covenant Not to Compete
Agreement effective February 23 rd 2004 covering Employee during the three year
period immediately following his last day of employment
6.
Confidentiality;
Inventions .
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Employee shall
fully and promptly disclose to the Company all inventions,
discoveries, software and writings that Employee may make,
conceive, discover, develop or reduce to practice either solely or
jointly with others during Employee's employment with the Company,
whether or not during usual working hours. Employee agrees that all
such inventions, discoveries, software and writing shall be and
remain the sole and exclusive property of the Company, and Employee
hereby agrees to assign, and hereby assigns all of Employee's
right, title and interest in and to any such inventions,
discoveries, software and writings to the Company. Employee agrees
to keep complete records of such inventions, discoveries, software
and writings, which records shall be and remain the sole property
of the Company, and to execute and deliver, either during or after
Employee's employment with the Company, such documents as the
Company shall deem necessary or desirable to obtain such letters
patent, utility models, inventor's certificates, copyrights,
trademarks or other appropriate legal rights of the United States
and foreign countries as the Company may, in its sole discretion,
elect, and to vest title thereto in the
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Company, its
successors, assigns, or nominees.
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"Inventions,"
as used herein, shall include inventions, discoveries,
improvements, ideas and conceptions, developments and designs,
whether or not patentable, tested, reduced to practice, subject to
copyright or other rights or forms of protection, or relating to
data processing, communications, computer software systems,
programs and procedures.
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Employee
understands that all copyrightable work that Employee may create
while employed by the Company is a "work made for hire," and that
the Company is the owner of the copyright therein. Employee hereby
assigns all right, title and interest to the copyright therein to
the Company.
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Employee has no
inventions, improvements, discoveries, software or writings useful
to the Company or its subsidiaries or affiliates in the normal
course of business, which were conceived, made or written prior to
the date of this Agreement.
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Employee will
not publish or otherwise disclose, either during or after
Employee's employment with the Company, any unpublished or
proprietary or confidential information or secret relating to the
Company, the Business, the Company ' s
operations or the Company's products or services. Employee will not
publish or otherwise disclose proprietary or confidential
information of others to which Employee has had access or obtained
knowledge in the course of Employee's employment with the Company.
Upon termination of Employee's employment with the Company,
Employee will not, without the prior written consent of the
Company, retain or take with Employee any drawing, writing or other
record in any form or nature which relates to any of the
foregoing.
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Employee
understands that Employee's employment with the Company creates a
relationship of trust and confidence between
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Employee and
the Company. Employee understands that Employee may encounter
information in the performance of Employee's duties that is
confidential to the Company or its customers. Employee agrees to
maintain in confidence all information pertaining to the Business
or the Company to which Employee has access including, but not
limited to, information relating to the Company's products,
inventions, trade secrets, know ho
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