Non-Competition Agreement - Park Place Entertainment Corp. and Lyle Berman
EXECUTION COPY
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is made and
entered into as of December 31, 1998, by and between Lyle Berman (the
"Executive") and Park Place Entertainment Corporation (f/n/a Gaming Co., Inc.),
a Delaware corporation ("Park Place").
RECITALS
WHEREAS, Gaming Co., Inc. (n/k/a Park Place Entertainment
Corporation), a Delaware corporation, Hilton Hotels Corporation, a Delaware
corporation ("Hilton"), Grand Casinos, Inc., a Minnesota corporation
("Company"), Gaming Acquisition Corporation, a Minnesota corporation and a
wholly-owned subsidiary of Park Place ("Merger Sub") and GCI Lakes, Inc. (n/k/a
Lakes Gaming, Inc.), a Minnesota corporation and a wholly-owned subsidiary of
Company ("Lakes") entered into an Agreement and Plan of Merger, dated as of June
30, 1998 (as the same may be amended or modified from time to time in accordance
with the terms thereof, the "Merger Agreement"), pursuant to which, upon the
terms and subject to the conditions thereof, Merger Sub will merge with and into
Company, with Company as the surviving corporation (the "Merger");
WHEREAS, the parties hereto recognize that the Executive may
have certain expertise in the business conducted by Park Place, the skills to
compete in the gaming industry, and the economic resources to compete in such
industry. Therefore, the parties hereto agree a non-competition agreement is
necessary, prudent, and has been bargained for in respect to the Merger.
WHEREAS, as a condition and inducement to each of Hilton's and
Park Place's willingness to consummate the transactions contemplated by the
Merger Agreement, Hilton and Park Place have requested that the Executive enter
into a non-compete agreement, upon the terms and subject to the conditions
hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants, undertakings and obligations set forth herein, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Covenant. Except for matters expressly provided for in or
contemplated by this Agreement, the Executive hereby agrees that he will not,
without the prior written consent of Park Place, directly or indirectly engage
in any of the following actions on or before the date that is two years after
the Closing Date (as defined in the Merger Agreement):
(a) own any interest in, manage, operate, join, control,
lend money or render other financial assistance to,
participate or be connected with, as an officer,
employee, partner, stockholder, consultant or
otherwise, any entity
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whose products or services are offered in the State
of Mississippi and could be considered part of the
gaming industry; provided, however, that nothing in
this Section 1 shall preclude the Executive from
holding less than five percent (5%) of the
outstanding capital stock of any corporation whose
products or services are offered in such states and
could be considered part of such industry and which
is required to file periodic reports with the U.S.
Securities and Exchange Commission under Section 13
or 15(d) of the Securities Exchange Act of 1934, as
amended, the securities of which corporation are
listed on any securities exchange, quoted on the
National Association of Securities Dealers Automated
Quotation System or traded in the over-the-counter
market; or
(b) solicit for employment, endeavor to entice away from
Park Place or any of its subsidiaries or affiliates
or otherwise interfere with the relationship of Park
Place or any of its subsidiaries or affiliates with
any person who is employed by, or otherwise engaged
to, perform services for Park Place or any of its
subsidiaries or affiliates, whether for the
Executive's own account or for the account of any
other individual, partnership, firm, corporation or
other business entity.
Section 2. Enforcement. If the scope of the Executive's agreement under
Section 1 hereof is determined by any court of competent jurisdiction to be too
broad to permit the enforcement of all of the provisions of such section to
their fullest extent, then the provisions of Section 1 hereof shall be construed
(and each of the parties hereto hereby confirm that its intent is that such
provisions be so construed) to be enforceable to the fullest extent permitted by
applicable law. To the maximum extent permitted by applicable law, the Executive
hereby consents to the judicial modification of the provisions of Section 1
hereof in any proceeding brought to enforce such provisions in such a manner
that renders such provisions enforceable to the maximum extent permitted by
applicable law.
Section 3. Relationship of Parties. Nothing in this Agreement shall be
deemed or construed by the parties hereto or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties hereto, it being understood and agreed that no provision contained
herein, and no act of the parties hereto, shall be deemed to create any
relationship between such parties other than the relationship set forth herein.
Section 4. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party hereto and any purported transfer without such
consent shall be void.
Section 5. Headings. The section and paragraph headings and table of
contents contained herein are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
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Section 6. Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the validity of the
other provisions hereof, which shall continue in full force and effect.
Section 7. Parties in Interest; No Third Party Beneficiary Rights. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Except as specifically
provided herein, this Agreement is for the sole and exclusive benefit of the
parties hereto and nothing herein is intended to give or shall be construed to
give to any person or entity other than the parties hereto any rights or
remedies hereunder.
Section 8. Notices. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by any party (or
other person referred to herein) shall be in writing and shall be deemed to be
given and effective (a) upon delivery if delivered in person or by courier, (b)
when sent by electronic transmission (telegraph, telex, telecopy or facsimile
transmission), receipt confirmed, (c) five days after being sent by airmail,
postage prepaid or (d) when receipt is acknowledged if mailed by certified mail,
postage prepaid, return receipt requested. The notice shall be delivered to the
addresses of each party hereto as follows, or to such other persons or addresses
as may be designated in writing by the party to receive such notice:
(i) if to Park Place:
Park Place Entertainment Corporation
3930 Howard Hughes Parkway, 4th Floor
Las Vegas, Nevada 89109
Attn: General Counsel
Fax: (702) 699-5179
with a copy to:
Sills Cummis Zuckerman
Radin Tischman Epstein & Gross
One Riverfront Plaza
Newark, New Jersey 07102
Attn: Michael Tischman, Esq.
Fax: (973) 643-6500
(ii) if to the Executive:
Lakes Gaming Inc.
130 Cheshire Lane
Minnetonka, Minnesota 55305
Attn: Lyle Berman
Fax: (612) 449-7003
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with a copy to:
Maslon Edelman Borman & Brand, LLP
3300 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
Attn: Neil I. Sell, Esq.
Fax: (612) 672-8397
Section 9. Further Assurances. Each of the parties hereto promptly
shall execute such documents and other instruments and take such further actions
as may be reasonably required or desirable to carry out the provisions hereof
and to consummate the transactions contemplated hereby.
Section 10. Waiver of Conditions. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.
Section 11. Governing Law. This Agreement shall be deemed to be made in
and in all respects shall be interpreted, construed and governed by and in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws thereof.
Section 12. Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto, and supersede all prior written or
oral communications, relating to the subject matter covered by said agreements.
No amendment, modification, extension or failure to enforce any condition of
this Agreement by either party shall be deemed a waiver of any of its rights
herein.
Section 13. Survival. Obligations described in this Agreement shall
remain in full force and effect and shall survive the Closing Date.
Section 14. Dispute Resolution. Any dispute arising under this
Agreement shall be resolved by binding arbitration in the manner contemplated by
Section 9.14 of the Hilton Distribution Agreement (as defined in the Merger
Agreement), including Section 9.14(c) thereof regarding the parties' ability to
seek specific performance or injunctive relief thereof, and including the
attorneys' fees provisions referred to therein.
Section 15. Specific Performance. The parties hereto agree that the
remedy at law for any breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any other appropriate relief or remedy. Such party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable laws, each party waives any
objection to the imposition of such relief.
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Section 16. Default. In the event of a material default by either party
hereunder, the non-defaulting party shall be entitled to all remedies provided
by law or equity (including reasonable attorneys' fees and costs of suit
incurred).
Section 17. Counterparts. This Agreement and any amendments hereto may
be executed in two or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when two or more counterparts
have been signed by each of the parties and delivered to the other party, it
being understood that all parties need not sign the same counterpart.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
LYLE BERMAN,
an Individual
By: Lyle Berman
--------------------------------------
Name: Lyle Berman
PARK PLACE ENTERTAINMENT
CORPORATION,
a Delaware corporation
By: Scott A. LaPorta
--------------------------------------
Name: Scott A. LaPorta
Title: Executive Vice President and Chief
Financial Officer
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