Consulting Agreement - Multimedia Games Inc. and Larry D. Montgomery
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
to become effective on April 15, 1998, by and between MULTIMEDIA GAMES, INC., a
Texas corporation (the "Company"), and LARRY D. MONTGOMERY, an individual
("Consultant").
W I T N E S S E T H:
WHEREAS, the Company wishes to retain Consultant on an exclusive basis
as an independent consultant, in order to utilize Consultant's knowledge and
expertise in matters of interest to the Company and its affiliates, including
Indian gaming and regulatory matters, and Consultant desires to provide such
knowledge and expertise to the Company and its affiliates and to perform certain
services in connection therewith; and
WHEREAS, the Company and Consultant desire to enter into this Agreement
to set forth their respective rights and obligations.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. Independent Consultant. The Company does hereby engage Consultant,
effective April 15, 1998, as a consultant and advisor with respect to the
matters set forth in Section 3 hereof and Consultant hereby accepts such
engagement for the compensation hereinafter set forth. Prior to April 15, 1998,
Employee shall remain a regular employee of the Company.
The Company and Consultant specifically understand and agree that
Consultant is and shall be and remain at all times under this Agreement an
independent contractor and not the servant, agent or employee of the Company,
and that Consultant shall be free from interference or direction from the
Company as to his day-to-day activities in the performance of his duties
hereunder. Except as otherwise expressly provided in Section 4 hereof,
Consultant shall not be considered under the provisions of this Agreement as
having employee status or as being entitled to participate in any plans,
arrangements, or distributions by the Company pertaining to or in connection
with any pension, stock bonus, profit-sharing, or any other benefit available to
a regular employee of the Company.
2. Term. The term of this Agreement shall commence on April 15, 1998,
and continue until December 31, 2002 (the "Scheduled Term"), unless this
Agreement is earlier terminated as hereinafter set forth. The period commencing
with April 15, 1998, and ending on the date of any termination of this Agreement
is hereinafter called the "Term".
3. Duties. During the Term of this Agreement, Consultant agrees to
consult with the Company through its Chairman of the Board and President (or any
Vice President identified to Consultant by the Chairman of the Board or
President) with respect to various matters, including but not limited to advice
and assistance in connection with Indian gaming and regulatory matters.
Consultant agrees to devote an average of forty (40) hours per week for
forty-four (44) weeks a year
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(pro rated as to the number of weeks remaining during the period commencing with
the date of this Agreement and ending with December 31, 1998) and to perform
such duties diligently and to the best of his ability. Consultant further agrees
that he will not during the Term of this Agreement be an independent contractor
to, or an employee of, or provide any services to, any other person that
provides goods and services in competition with, or whose interests or adverse
to those of, the Company.
4. Compensation. As compensation for all duties performed by Consultant
under this Agreement:
(a) During the Term of this Agreement, the Company shall pay Consultant
at the rate of one hundred twenty six thousand dollars ($126,000) per annum,
payable in bi-monthly installments of $5,250.00 each, on the fifteenth day and
the last day of each calendar month, commencing with April 30, 1998 and ending
with the last day of the Term.
(b) During the Scheduled Term of this Agreement, the Company shall pay
all premiums on all life, disability and health insurance with respect to
Consultant and his spouse in order to provide benefits to Consultant and his
spouse to the same extent enjoyed by them on Consultant's last day of employment
with the Company.
(c) Consultant was granted a Stock Option on January 8, 1998, pursuant
to the Company's 1996 Stock Incentive Plan (the "1996 Plan") to purchase 15,000
shares of the Company's Common Stock at a price of $10.50 per share, as
evidenced by a separate Stock Option Agreement between the Company and
Consultant.
5. Reimbursement for Expenses. Consultant shall be reimbursed for his
reasonable expenses incurred in connection with the performance of his duties
hereunder to the extent the same have been authorized in advance by the Chairman
of the Board, President or Chief Financial Officer of the Company and Consultant
submits proper documentation with respect thereto.
6. Taxes. Any taxes or similar charges assessed against Consultant as a
result of the compensation received by him hereunder shall be for the account of
Consultant.
7. Termination. The Company shall have the right at its option to
terminate this Agreement for any reason or for no reason by delivering, at any
time after December 31, 1998, a written notice to Consultant. Such written
notice shall specify the date of termination of this Agreement which in no event
shall be earlier than one hundred eighty days (180) days' from the date such
written notice is delivered to Consultant. Consultant shall also have the right
at his option to terminate this Agreement for any reason or for no reason by
delivering, at any time after December 31, 1998, a written notice of termination
to the Company. Such written notice shall specify the date of termination of
this Agreement which in no event shall be earlier than ninety (90) days' from
the date such written notice is delivered to the Company. The Term of this
Agreement shall also terminate upon the death of Consultant.
8. Confidential Information. Consultant shall not, without the prior
written consent of the Company, publish, disclose or make accessible to any
person, firm or corporation, or himself use, any "Confidential Information" (as
hereinafter defined), relating to the Company and its affiliates
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which Consultant may now possess or may obtain or create prior to the
termination of this Agreement. "Confidential Information" shall include all
information, whether oral or written, respecting the Company's and its
affiliates' business, including, but not limited to, existing, proposed or
prospective acquisitions and investments, customers, marketing techniques or
strategies, pricing policies, cost information, commercial relationships,
financial results and research and development. "Confidential Information" shall
not include information which is public knowledge or which shall become public
knowledge through no direct or indirect involvement on the part of Consultant.
9. Authority. Consultant shall not have the authority, express or
implied, to bind the Company and its affiliates with respect to any matter,
except with the prior consent of the Chairman of the Board or President (or
identified Vice President) of the Company, which consent may be given orally or
in writing.
10. Indemnity. The Company shall indemnify and hold harmless Consultant
against and in respect of any and all damages, claims, losses, expenses, costs,
obligations and liabilities (including reasonable attorney's fees) incident to
any suit, action, investigation, claim or proceeding which Consultant may incur
or may suffer by reason of providing services pursuant to this Agreement or by
reason of acting for or on behalf of the Company pursuant to any authority
granted or delegated to Consultant under this Agreement; provided, that the
foregoing indemnification shall not include or apply to any liability arising by
reason of any act or omission of Consultant which resulted from his fraud, gross
negligence or willful misconduct or breach or default under this Agreement or
any such power or authority.
11. Remedies. Consultant acknowledges that the Company would have no
adequate remedy at law and would be irreparably harmed if Consultant would
breach any of the provisions of Section 8 above and, therefore, agrees that the
Company shall be entitled to injunctive relief to prevent any such breaches or
threatened breaches and to specific performance of such terms in addition to any
other legal or equitable remedies. Consultant further agrees that he shall not
in any proceeding in equity relating to the enforcement of Section 8 above raise
the defense that the Company has an adequate remedy at law. Nothing contained
herein shall be construed as prohibiting the Company from pursuing any other
remedies at law or in equity which it may have.
12. Severability. If any one or more of the provisions or part of a
provision contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of this Agreement in any other jurisdiction or any
other provision or part of a provision of this Agreement, but this Agreement
shall be reformed and construed in such jurisdiction as if such invalid, illegal
or unenforceable provision or part of a provision had never been contained
herein and such provision or part shall be reformed so that it would be valid,
legal and enforceable in such jurisdiction to the maximum extent possible.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed delivered on the date
personally delivered by hand, facsimile or by similar means, or on the third
(3rd) day after mailing if mailed to the party to whom notice is to be given by
first class mail, postage prepaid and properly addressed as follows:
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If to Consultant:
Larry D. Montgomery
1920 S.W. Union Road
Topeka, Kansas 66615
Telecopy: (913) 256-6038
If to the Company:
Multimedia Games, Inc.
7335 South Lewis Avenue
Suite 204
Tulsa, Oklahoma 74136
Attention: President
Telecopy: (918) 497-1391
Either party may change its address for purposes of this Section 13 by giving
the other party written notice of the new address in the manner set forth above.
14. Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by either party hereto without the prior
written consent of the other.
15. Governing Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of Oklahoma.
16. Outstanding Options. Except for options granted to Consultant under
the 1996 Plan (which shall remain in full force and effect in accordance with
their terms), the vesting of all other options granted to Consultant pursuant to
the Company's 1994 Employee Stock Option Plan shall be accelerated to April 15,
1998, and Consultant shall have the right until April 15, 1998, to exercise all
or any part of such options in accordance with their terms.
17. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any and all prior and contemporaneous promises, agreements and
representations not set forth in this Agreement. This Agreement may not be
amended or modified except by a writing signed by both parties.
18. Captions. The captions and headings contained herein are solely for
convenience and reference and do not constitute a part of this Agreement.
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IN WITNESS WHEREOF, the Company and Consultant have executed and
delivered this Agreement as of the day and year first above written.
MULTIMEDIA GAMES, INC.
By:
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Name: Gordon T. Graves
Title: Chairman of the Board
CONSULTANT
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Larry D. Montgomery