Exhibit 10.35
SEPARATION AND CONSULTING
AGREEMENT
This SEPARATION AND CONSULTING
AGREEMENT (the “Agreement”) is entered into by and
between Bally Gaming, Inc. (“Company”) and Robert
Luciano (“Luciano”), and shall be effective on the date
last signed by the parties, as indicated below.
WHEREAS, Luciano has been employed
at-will by the Company, as Chief Technology Officer; Luciano and
the Company wish to set forth terms and conditions of his
post-employment relationship with the Company, along with related
rights and obligations of the parties; and, Luciano and the Company
wish to resolve all matters related to Luciano’s employment
with the Company, on the terms and conditions expressed in this
Agreement.
NOW THEREFORE, in consideration of
the mutual promises contained herein, the parties, intending to be
legally bound, agree as follows:
1.
Consulting Obligations
.
1.1
Agreement for Services
. For a period of two years
commencing on July 7, 2009 and ending on July 6, 2011
(the “Term”), Luciano shall provide such consulting
services as the Company may reasonably request from time to time
and at the Sierra Manor location or such location as the Company
may reasonably require. The Company and Luciano agree and
understand that the services performed by Luciano under this
Agreement will not require Luciano to engage in full-time efforts
or work, but instead shall be periodic and limited in nature and
that Luciano shall be entitled to accept other employment and
pursue other activities and interests, so long as such employment,
activities and interests do not otherwise breach Luciano’s
covenants and obligations under Section 3.1 of this Agreement.
Luciano shall perform the services as an independent contractor and
shall not be deemed an employee of the Company for any
purpose.
2.
Payments; Benefits
.
2.1
Consulting Fee
. The Company shall pay Luciano
(i) an annual consulting fee of $10,000 on each of
July 7, 2009 and July 7, 2010 so long as this Agreement
has not been terminated by either party prior to such payment date,
plus (ii) an additional consulting fee at a rate of $1,250 per
half day (2 to 4 hours) or $2,500 per full day (more than 4 hours),
payable monthly in arrears based on the number of full days or half
days actually worked during the applicable month (collectively,
“Consulting Fees”). Luciano shall submit written time
records to the Company no later than 30 days after any work is
performed under this Agreement. Luciano agrees he will be fully and
solely responsible for any income or other tax liability imposed on
him in his capacity as an independent contractor. Accordingly, the
Company will not withhold federal or state income, social security,
or other taxes from the consulting fees and other amount paid under
this Agreement, unless otherwise required by law.
2.2
Expenses . The Company agrees to reimburse Luciano for
all reasonable and necessary out-of-pocket business related
expenses he incurs at the request of the Company, provided that
Luciano shall submit reasonable documentation of such expenses. In
lieu of paying for Luciano’s lodging expenses while in Las
Vegas, and in addition to any other payments under this Agreement,
the Company shall pay Luciano $5,000 each month until the
expiration or other termination of this Agreement. Luciano shall
also retain use of a company paid Blackberry and access to his
Company email.
2.3
Benefits . The Company shall reimburse Luciano for the
expense of his COBRA coverage until the earlier of (i) the
termination of this Agreement or (ii) the expiration of
Luciano’s
COBRA coverage. The following Luciano benefits
shall terminate on the Separation Date: a) short-term disability;
b) long-term disability; c) basic life; d) accidental death and
dismemberment; e) dependent life insurance; f) medical insurance,
but still subject to extended coverage via COBRA; and g) company
sponsored 401k.
3.
Restrictive Covenants
.
3.1
Covenant Not to
Compete . During the Term
and for a period of two years following the expiration or
termination of this Agreement for any reason, Luciano will not,
directly or indirectly, whether as employee, owner, partner, agent,
officer, consultant, advisor, stockholder (except as the beneficial
owner of not more than 3% of the outstanding shares of a
corporation, any of the capital stock of which is listed on any
national or regional securities exchange or quoted in the daily
listing of over-the-counter market securities and, in each case, in
which Luciano does not undertake any management or operational or
advisory role) or in any other capacity, for Luciano’s own
account or for the benefit of any person or entity, establish,
engage, or be connected with any person or entity that is at the
time engaged in the gaming business or otherwise competitive with
the Company. The Company acknowledges that Luciano currently has
certain personal and professional non Gaming relationships with
Msrs. Aki Ioki, Randy Hendrick, Rich Fiore and John Acres and that
such non Gaming relationships do not violate his section
3.1.
3.2
Luciano acknowledges and agrees that
the scope of these noncompete provisions are unlimited
geographically and that the scope and duration of the covenant are
reasonable and fair; however, if a court of competent jurisdiction
determines that this covenant is overbroad or unenforceable in any
respect, the Company and Luciano agree that the covenant shall be
enforced to the greatest extent the court deems appropriate, and
such court may modify this covenant to that extent.
3.3
Non-Solicitation
. Luciano shall not, directly or
indirectly, during the Term and through the date two years after
the expiration or termination of this Agreement for any reason,
hire or aid or endeavor to solicit or induce any employee or
consultant of the Company to leave the service of the Company or to
accept employment of any kind with any other person or
entity.
4.
Termination of
Employment .
Luciano’s employment with the Company, the Employment
Agreement letter dated March 2, 2004, the subsequent amendment
dated April 13, 2005, and the Second Amendment to Employment
Agreement dated May 16, 2008 (collectively, the
“Employment Agreements”), shall terminate effective as
July 6, 2009 (the “Separation Date”).
5.
Release of Claims
5.1
Luciano Release
. Luciano hereby forever releases
and discharges the Company, its employees, agents and attorneys (in
their individual and representative capacities), from
any
