Untitled Document


Exhibit 10.1

  

EMPLOYMENT
  AGREEMENT

  

            This
  Employment Agreement (this "Agreement") is entered into as of May
  24, 2002, between Hard Rock Hotel, Inc., a Nevada corporation (the "Company"),
  and Don Marrandino, an individual ("Executive").

  

Preliminary
  Statements

  


                          A.            The
    Company currently operates that certain hotel/casino resort known as the "Hard
    Rock Hotel" located at 4455 Paradise Road, Las Vegas, Nevada.

    

                            B.            The
    Company desires to employ Executive, and Executive desires to be so employed,
    on the terms and conditions herein contained.

    





  Agreement

  

            NOW,
  THEREFORE, in consideration of the various covenants and agreements hereinafter
  set forth, the parties hereto agree as follows:

            1.
              Term of Employment.
  The Company hereby employs Executive and Executive accepts such employment commencing
  on the date of this Agreement (the "Commencement Date") and terminating
  on the first anniversary of the Commencement Date, unless sooner terminated
  as hereinafter provided; provided, however, that this Agreement may be extended
  for successive one (1) year terms upon the mutual agreement of the parties hereto.



              2.             Services
  to be Rendered.

                        2.1.
              Duties of Executive.
  Executive shall be employed to serve in the capacity of President and General
  Manager of the Company. Executive shall be responsible for the overall supervision,
  direction, and control of the operations of the Hard Rock Hotel facility and
  shall direct the operating departments with a view to the successful implementation
  of the business policies and plans for the Hard Rock. Executive shall provide
  support in the conceptual, strategic, and policy formulation functions of the
  Company and shall direct and coordinate the activities of the Hard Rock to attempt
  to obtain optimum efficiency and economy of operations in order to maximize
  profits. Executive shall devote his full business time, attention and ability
  to the affairs of the Company during the term of this Agreement; provided, however,
  that Employee shall not be precluded from involvement in charitable or civic
  activities or his personal financial investments provided that the same do not
  interfere with his time and attention to the affairs of the Company. Executive
  will report directly to the Chairman of the Board of Directors ("Chairman")
  or such other person designated by the Chairman or Board of Directors of the
  Company (the "Board").



              3.             Compensation
  and Benefits. The Company shall pay the following compensation and benefits
  to Executive during the term hereof; and Executive shall accept the same as
  payment in full for all services rendered by Executive to or for the benefit
  of the Company:

                        3.1.
              Base Salary. Commencing
  on the Commencement Date, a base salary (the "Base Salary") of $375,000
  per annum. The Base Salary shall accrue in equal bi-weekly installments in arrears
  and shall be payable in accordance with the payroll practices of the Company
  in effect from time to time.

  

                        3.2. Annual
  Bonus. Executive shall be eligible to receive an annual bonus (the "Annual
  Bonus") to be determined by the Chairman based upon the achievement of
  the financial performance and other objectives of the Company and Executive’s
  contribution to such performance. 

  

                        3.3. Stock.
  Executive shall be entitled to participate in any stock option or phantom equity
  plans that the Company provides to its comparable senior executive officers
  to the extent such plans are established by the Company.

  

                        3.4. Expenses.
  The Company shall reimburse Executive for reasonable out-of-pocket expenses
  incurred in connection with the performance of his duties hereunder, subject
  to (i) such policies as the Board may from time to time establish and (ii) Executive
  furnishing the Company with evidence in the form of receipts satisfactory to
  the Company substantiating the claimed expenditures.

  

                        3.5. Vacation.
  Executive shall be entitled to the number of paid vacation days in each calendar
  year determined by the Company from time to time for its comparable senior executive
  officers. Executive shall also be entitled to all paid holidays given to the
  Company’s comparable senior executive officers.

  

                        3.6. Benefits.
  Executive shall be entitled to participate in the Company’s group insurance,
  hospitalization, and group health and benefit plans and all other benefits and
  plans as the Company provides to its comparable senior executive officers to
  the extent such plans are established by the Company and to the extent that
  Executive is eligible to participate in such plans. 

  

                        3.7. Withholding
  and other Deductions. All compensation payable to Executive hereunder shall
  be subject to such deductions as the Company is from time to time required to
  make pursuant to law, governmental regulation or order.

  

            4. Facilities.
  Executive shall be furnished with an office, supplies and personnel which are
  necessary or appropriate for the adequate performance by Executive of his duties
  as set forth in this Agreement.

  

            5. Representations
  and Warranties of Executive. Executive represents and warrants to the Company
  that (i) Executive is under no contractual or other restriction or obligation
  which is inconsistent with the execution of this Agreement, the performance
  of his duties hereunder, or the other rights of the Company hereunder and (ii)
  Executive is under no physical or mental disability that would hinder the performance
  of his duties under this Agreement.

  

            6. Non-disclosure;
  Non-solicitation. During the term of this Agreement and thereafter, Executive
  shall hold in a fiduciary capacity for the benefit of the Company all secret
  or confidential information, knowledge or data relating to the Company or its
  affiliates, and their respective businesses, which shall not be public knowledge
  (other than information which becomes public as a result of acts of Executive
  or his representatives in violation of this Agreement), including, without limitation,
  customer/ client lists, matters subject to litigation, and technology or financial
  information of the Company or its subsidiaries, without the prior written consent
  of the Company. In addition, during the term of this Agreement and for a two
  (2) year period thereafter, Executive shall not, directly or indirectly, solicit
  or contact any employee of the Company or any affiliate of the Company, with
  a view to inducing or encouraging such employee to leave the employ of the Company
  or its affiliates, for the purpose of being employed by Executive, an employer
  affiliated with Executive or any competitor of the Company or any affiliate
  thereof. Executive acknowledges that the provisions of this Article 6 are reasonable
  and necessary for the protection of the Company and that the Company will be
  irrevocably damaged if such provisions are not specifically enforced. Accordingly,
  Executive agrees that, in addition to any other relief to which the Company
  may be entitled in the form of actual or punitive damages, the Company shall
  be entitled to seek and obtain injunctive relief from a court of competent jurisdiction
  (without posting a bond therefor) for the purpose of restraining Executive from
  any actual or threatened breach of such provisions.

  

            7. Termination.

  

                        7.1. Death
  or Total Disability of Executive. If Executive dies or becomes totally disabled
  during the term of this Agreement, Executive’s employment hereunder shall
  automatically terminate. For these purposes Executive shall be deemed totally
  disabled if Executive shall become physically or mentally incapacitated or disabled
  or otherwise unable fully to discharge Executive’s essential duties hereunder
  for a period of ninety (90) consecutive calendar days or for one hundred twenty
  (120) calendar days in any one hundred eighty (180) calendar-day period.

  

                        7.2.
  Termination for Good Cause. Executive’s employment hereunder may be terminated
  by the Company for "good cause." The term "good cause is defined
  as any one or more of the following occurrences:

  

                        (a)
  Executive’s breach of any of the covenants contained in Article 6 of this
  Agreement;

  

                        (b)
  Executive’s conviction by, or entry of a plea of guilty or nolo contendere
  in, a court of competent and final jurisdiction for any crime involving moral
  turpitude or punishable by imprisonment in the jurisdiction involved;

  

                          (c)
  Executive’s commission of an act of criminal fraud that affects the Company,
  whether prior to or subsequent to the date hereof upon the Company;

  

                          (d)
  Executive’s continuing repeated willful failure or refusal to perform Executive’s
  duties as required by this Agreement (including, without limitation, Executive’s
  inability to perform Executive’s duties hereunder as a result of drug or
  alcohol related misconduct and/or as a result of any failure to comply with
  any laws, rules or regulations of any governmental entity with respect to Executive’s
  employment by the Company);

  

                          (e)
  Executive’s gross negligence, insubordination or material violation of
  any duty or loyalty to the Company, misappropriation of Company assets, or any
  other material misconduct on the part of Executive;

  

                        (f)
  Executive’s commission of any act which is materially detrimental to the
  Company’s business or goodwill;

  

                        (g)
  the failure of Executive to obtain any requisite license, permit or approval
  based on suitability from any state, county, or other governmental authority
  having jurisdiction over the gaming operations of the Company (the "Gaming
  Authorities") which would preclude Executive from carrying out his duties
  as set forth in this Agreement;

  

                        (h) if, after
  the initial receipt by Executive of any requisite license, permit or approval
  from the Gaming Authorities, the execution of Executive’s duties as set
  forth in this Agreement will, as evidenced by communications from any senior
  official of any of the Gaming Authorities, materially preclude or unduly delay
  the issuance of, or result in the imposition of unduly burdensome terms and
  conditions on, or revocation of, any liquor, gaming or other license, permit
  or approval, necessary or appropriate to the proposed, contemplated or actual
  operations of the Company; provided, however, that this Section 7.2(h) shall
  not be applicable if Executive shall, within a reasonable period of time after
  receipt of written notice from the Board specifying the nature of the issues
  involved hereunder, remedy the situation to the satisfaction of the applicable
  Gaming Authorities; or

  

                          (i) Executive’s breach of any other provision of this Agreement, provided
  that termination of Executive’s employment pursuant to this subsection
  (i) shall not constitute valid termination for good cause unless Executive shall
  have first received written notice from the Board stating with specificity the
  nature of such breach and affording Executive at least fifteen (15) days to
  correct the breach alleged.

  

                          7.3. Resignation of Executive. The Company shall have the right to terminate
  this Agreement and Executive’s employment hereunder due to the voluntary
  resignation of Executive, provided that Executive shall deliver no less than
  sixty (60) days prior written notice of such resignation to the Board, which
  notice may be waived by the Company in its sole discretion.

  

                        7.4. Severance
  Compensation. Notwithstanding anything contained in this Agreement, upon a termination
  of this Agreement and Executive’s employment hereunder due to the occurrence
  of any of the events referred to in Section 7.1, 7.2 or 7.3 of this Agreement,
  Executive (or Executive’s heirs or representatives) shall be entitled to
  receive only such portion (if any) of the Base Salary as may theretofore have
  accrued but be unpaid on the date on which the termination shall take effect.

  

                          7.5. Termination for No Cause. In addition to the right to terminate this Agreement
  pursuant to Sections 7.1, 7.2 and 7.3 of this Agreement, the Company shall have
  the right to terminate this Agreement and Executive’s employment hereunder
  for any other reason or for no reason prior to the expiration of the term of
  this Agreement. In the event that the Company terminates this Agreement and
  Executive’s employment hereunder pursuant to this Section 7.5, the Company
  shall give ten (10) days prior written notice to Executive and pay a termination
  fee to Executive in an amount equal to the lesser of (i) one years Base Salary
  or (ii) the remainder of the Base Salary which would otherwise be due Executive
  pursuant to this Agreement but for such termination, to be paid in the manner
  and at the rate Executive had received immediately prior to such termination
  pursuant to Section 3.1 of this Agreement and the Company shall have no further
  obligation to Executive under this Agreement.

  

                        7.6.
  Termination Obligations of Executive. In the event that this Agreement and Executive’s
  employment hereunder is terminated, Executive, or his legal representative in
  case of termination by death or Executive’s physical or mental incapacity
  to serve, shall:

  

                        (a)
  by the close of the effective date of termination, resign from all corporate
  positions held in the Company and any of its subsidiary and affiliated companies;

                          (b)
  promptly return to a representative designated by the Company all property,
  including but not limited to, keys, identification cards and credit cards of
  the Company or any of its subsidiaries or affiliated companies; and

  

                        (c) incur
  no further expenses or obligations on behalf of the Company, or any of its subsidiaries
  and affiliated companies.

  

            8. Change
  of Control. In the event of a "Change of Control" (as defined below)
  the Executive shall be entitled to one years Base Salary if within thirty (30)
  days after the Change in Control the Executive tenders his resignation in conformity
  with Article 7.3 of the Agreement. A Change in Control of the Company shall
  mean a change in control of a nature that would be required to be reported in
  response to Item 403(c) of Regulation S-K; provided that, without limitation,
  such a change in control shall not be deemed to have occurred if Peter Morton
  is the beneficial owner as defined in Rule 13d-3 under the Exchange Act, directly
  or indirectly, of securities of the Company representing 51% or more of the
  combined voting power of the Company’s then outstanding securities.

  

            9. Arbitration.
  Any claim or controversy arising out of or relating to this Agreement shall
  be settled by arbitration in Las Vegas. Nevada, in accordance with the Commercial
  Arbitration Rules of the American Arbitration Association, and judgment on the
  award rendered by the arbitrators may be entered in any court having jurisdiction.
  There shall be three arbitrators, one to be chosen directly by each party at
  will, and the third arbitrator to be selected by the two arbitrators so chosen.
  Each party shall pay the fees of the arbitrator it selects and of its own attorneys,
  the expenses of its witnesses and all other expenses connected with presenting
  its case. Other costs of the arbitration, including the cost of any record or
  transcripts of the arbitration, administrative fees, the fee of the third arbitrator,
  and all other fees and costs, shall be borne equally by the parties hereto unless
  it is determined that one or both parties were not acting in good faith in which
  case the party determined to not have been acting in good faith shall bear all
  fees and expenses described above which would otherwise have been paid by the
  opposing party.

  

            10. General
  Relationship. Executive shall be considered an employee of the Company within
  the meaning of all federal, state and local laws and regulations including,
  but not limited to, laws and regulations governing unemploy-ment insurance,
  workers’ compensation, industrial accident, labor and taxes.

  

            11. General
  Provisions.

  

                        11.1. Binding
  Effect. This Agreement shall be binding upon and inure to the benefit of the
  Company and its successors and assigns and Executive, his assignees, and his
  estate. Neither Executive, his designees, nor his estate shall commute, pledge,
  encumber, sell or otherwise dispose of the rights to receive the payments provided
  in this Agreement, which payments and the rights thereto are expressly declared
  to be nontransferable and nonassignable (except by death or otherwise by operation
  of law).

  

                        11.2. Governing
  Law. This Agreement shall be governed by the laws of the State of Nevada from
  time to time in effect.

  

                        11.3. Counterparts.
  This Agreement may be executed in one or more counterparts, each of which shall
  be deemed an original, but all of which taken together shall constitute one
  and the same Agreement.

  

                        11.4. No Waiver.
  Except as otherwise expressly set forth herein, no failure on the part of either
  party hereto to exercise and no delay in exercising any right, power or remedy
  hereunder shall operate as a waiver hereof nor shall any single or partial exercise
  of any right, power or remedy hereunder preclude any other or further exercise
  thereof or the exercise of any other right, power or remedy.

  

                        11.5. Headings.
  The headings of the Articles and Sections of this Agreement have been inserted
  for convenience of reference only and shall in no way restrict any of theterms
  or provisions hereof.

  

                        11.6. Notices.
  Any notice under this Agreement shall be given in writing and delivered in person
  or mailed by certified or registered mail, addressed to the respective party
  at the address as set out below, or at such other address as either party may
  elect to provide in advance in writing, to the other party:

  


  
    EXECUTIVE:

      Don Marrandino

      9013 Night Owl Court

      Las Vegas, NV 89134

      

    COMPANY:

      Hard Rock Hotel, Inc.

      510 North Robertson Boulevard

      Los Angeles, California 90048

      Attn: Peter Morton

      

    WITH A COPY TO:

      Gordon & Silver, Ltd.

      3960 Howard Hughes Pkwy

      Ninth Floor

      Las Vegas, NV 89109

      Attn: Jeff Silver, Esq.

      

  



                        11.7. Severability.
  If any provision of this Agreement is held by a court of competent jurisdiction
  to be invalid, illegal, or unenforceable by reason of any rule of law or public
  policy, all other provisions of this Agreement shall nevertheless remain in
  effect. No provision of this Agreement shall be deemed dependent on any other
  provision unless so expressed herein.

  

                        11.8. Compliance
  with Laws; Gaming Authorities Approval. Nothing contained in this Agreement
  shall be construed to require the commencement of any act contrary to law, and
  when there is any conflict between any provision of this Agreement and any statute,
  law, ordinance, or regulation, contrary to which the parties have no legal right
  to contract, then the latter shall prevail; but in such an event, the provisions
  of this Agreement so affected shall be curtailed and limited only to the extent
  necessary to bring it within the legal requirements. Notwithstanding anything
  contained in this Agreement to the contrary, this Agreement and the terms and
  conditions contained herein shall be contingent upon receipt of all requisite
  approvals of the applicable Gaming Authorities.

  

                        11.9. No Waiver.
  The several rights and remedies provided for in this Agreement shall be construed
  as being cumulative, and no one of them shall be deemed to be exclusive of the
  others or of any right or remedy allowed by law. No waiver by the Company or
  Executive any failure of Executive or the Company, respectively, to keep or
  perform any provision of this Agreement shall be deemed to be a waiver of any
  preceding or succeeding breach of the same or other provision.

  

                        11.10. Merger.
  This Agreement supersedes any and all other agreements, either oral or in writing,
  between the parties hereto with respect to the employment of Executive by the
  Company.

  

                        11.11. No
  Representations. Each party to this Agreement acknowledges that no representations,
  inducements, promises or other agreements, oral or otherwise, have been made
  by any party, anyone acting on behalf of any party, which are not embodied herein
  and that no other agreement, statement or promise not contained in this Agreement
  shall be valid or binding. Any addendum to or modification of this Agreement
  shall be effective only if it is in writing and signed by the parties to be
  charged.

  

                        11.12. Drafting
  Ambiguities. Each party to this Agreement has been afforded an opportunity to
  have this Agreement reviewed by his or its respective counsel. The normal rule
  of construction to the effect that any ambiguities are to be resolved against
  the drafting party shall not be employed in the interpretation of this Agreement
  or of any amendments or exhibits to this Agreement.

  

                        11.13.
  Survival. The terms and conditions of Article 6 and Section 10.6 of this Agreement
  shall survive the termination of this Agreement.

  

            IN WITNESS
  WHEREOF, the parties hereto have caused this Agreement to be duly executed as
  of the date hereinabove set forth.

  

	      COMPANY:	 EXECUTIVE:
	 	
	      Hard Rock
      Hotel, Inc., a Nevada corporation

      	
	 	
	      By:      /s/
      Peter A. Morton	/s/ Don Marrandino
	                  Peter
      A. Morton, Chairman	Don Marrandino