Exhibit 10.9
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Dated: February 13, 2000
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EMPLOYMENT AGREEMENT
- by and between -
GREATE BAY CASINO CORPORATION
- and -
XXXX X. XXXX
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TABLE OF CONTENTS
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Page
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RECITALS.......................................................................1
1. DEFINITIONS...........................................................1
2. PRIOR EMPLOYMENT......................................................2
3. BASIC EMPLOYMENT AGREEMENT............................................3
4. DUTIES OF EMPLOYEE....................................................3
5. ACCEPTANCE OF EMPLOYMENT..............................................3
6. TERM..................................................................4
7. SPECIAL TERMINATION PROVISIONS........................................4
8. COMPENSATION TO EMPLOYEE..............................................4
(a) Base Salary......................................................5
(b) Bonus............................................................5
(c) Employee Benefit Plans...........................................5
(d) Expense Reimbursement............................................5
(e) Licensing Expenses...............................................6
(f) Vacations and Holidays...........................................6
9. LICENSING REQUIREMENTS................................................6
10. CONFIDENTIALITY.......................................................7
11. RESTRICTIVE COVENANT..................................................8
12. BEST EVIDENCE.........................................................8
13. SUCCESSION............................................................8
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14. ASSIGNMENT............................................................9
15. AMENDMENT OR MODIFICATION.............................................9
16. GOVERNING LAW.........................................................9
17. NOTICES...............................................................9
18. INTERPRETATION.......................................................10
19. SEVERABILITY.........................................................10
20. DISPUTE RESOLUTION...................................................10
21. WAIVER...............................................................10
22. PAROL................................................................11
23. REIMBURSEMENT OF HOLLYWOOD CASINO
CORPORATION, ETC.....................................................11
24. EXECUTION PAGE.......................................................12
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
13/th/ day of February, 2000, by and between GREATE BAY CASINO CORPORATION
("Employer") and XXXX X. XXXX ("Employee").
W I T N E S S E T E T H:
WHEREAS, Employer is a corporation, duly organized and existing under the
laws of the State of Delaware, which is involved in gaming related activities
and which has a need for qualified, experienced personnel; and
WHEREAS, Employee is an adult individual currently residing at 0000 Xxxx
Xxxx Xxxxx, Xxxx Xxxxx, Xxxxx 00000;
NOW, THEREFORE, for and in consideration of the foregoing recitals, and in
consideration of the mutual covenants, agreements, understandings, undertakings,
representations, warranties and promises hereinafter set forth, and intending to
be legally bound thereby, Employer and Employee do hereby covenant and agree as
follows:
1. DEFINITIONS. As used in this Agreement, the words and terms
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hereinafter defined have the respective meanings ascribed to them herein, unless
a different meaning clearly appears from the context:
(a) "Cause" means any of the following: (i) Employee's failure (for
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any reason other than as the result of a Complete Disability) to
perform Employee's duties under this Agreement with a reasonable
degree of diligence, competence and effectiveness; (ii) Employee's
engagement in any personal misconduct involving dishonesty,
illegality, or moral turpitude which is materially detrimental or
injurious to the business interests, reputation or goodwill of
Employer or Employer's Affiliates; (iii) Employee's engagement in any
material act of dishonesty, disloyalty, or infidelity
against Employer or Employer's Affiliates; (iv) Employee's breach of
or other failure to perform under any of the material terms and
covenants of this Agreement; (v) Employee's willful violation of any
material policy established by Employer with respect to the operation
of Employer's business and affairs, or the conduct of Employer's
employees; (vi) Employee's insubordination with respect to, or willful
failure, in any material respect, to carry out all reasonable and
lawful instructions issued by, the President of Employer; and (vii)
Employee's failure to maintain in force and in good standing any and
all licenses, permits and/or approvals required of Employee by the
relevant governmental authorities for the discharge of the obligations
of Employee under this Agreement. All determinations of the existence
of "Cause," including without limitation any determination with
respect to performance, reasonableness, effectiveness, materiality and
injury, shall be made in good faith by the Employer's Board of
Directors and shall be conclusive as to all parties.
(b) "Complete Disability" means the inability of Employee, due to
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illness or accident or other mental or physical incapacity, to perform
his obligations under this Agreement for a period of one hundred
eighty (180) calendar days in the aggregate over a period of five
hundred (500) consecutive calendar days, such "Complete Disability" to
become effective upon the expiration of such one hundred eightieth
(180th) day.
(c) "Effective Date" means the date first above written.
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(d) "Employee" means Employee as earlier defined in this Agreement.
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(e) "Employer" means Employer as earlier defined in this Agreement.
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(f) "Employer's Affiliates" means any parent, subsidiary or affiliated
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corporation or other legal entity of Employer.
(g) "Prior Employment" means any prior employment Employee has had
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with either Employer or Employer's Affiliates.
2. PRIOR EMPLOYMENT. This Agreement supersedes and replaces any and all
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prior employment agreements, whether written or oral, by and between Employee,
on the one side, and Employer or Employer's Affiliates, on the other side,
including, without limitation, that certain Employment Agreement dated as of
January 1, 1998 (the "1/1/98 Employment Agreement"), between Employer and
Employee. The parties hereto acknowledge and agree that, from January 1,
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1998 until February 12, 2000, the 1/1/98 Employment Agreement will govern the
employment arrangement between such parties. From and after the Effective Date,
Employee shall be the employee of Employer under the terms and pursuant to the
conditions set forth in this Agreement.
3. BASIC EMPLOYMENT AGREEMENT. Subject to the terms and pursuant to the
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conditions hereinafter set forth, Employer hereby employs Employee during the
Term hereinafter specified to serve in a managerial or executive capacity, under
a title and with such duties not inconsistent with those set forth in Paragraph
4 of this Agreement, as the same may be modified and/or assigned to Employee by
Employer from time to time.
4. DUTIES OF EMPLOYEE. Employee shall perform such duties assigned to
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Employee by Employer as are generally associated with the duties of Chairman of
the Board and Chief Executive Officer, including but not limited to (i) the
efficient and continuous operation of Employer and Employer's Affiliates; (ii)
the selection and delegation of duties and responsibilities of subordinates;
(iii) the direction, review and oversight of all operations and programs under
Employee's supervision; and (iv) such other and further duties specifically
related to such duties as assigned by Employer to Employee. The foregoing
notwithstanding, Employee shall devote such time to Employer's Affiliates as
required by Employer, provided such duties are not inconsistent with Employee's
primary duties to Employer hereunder.
5. ACCEPTANCE OF EMPLOYMENT. Employee hereby unconditionally accepts the
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employment set forth hereunder, under the terms and pursuant to the conditions
set forth in this Agreement. Employee hereby covenants and agrees that, during
the Term of this Agreement, Employee will devote the whole of his normal and
customary working time and best efforts solely to the performance of Employee's
duties under this Agreement.
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6. TERM. The term of this Agreement shall commence on the Effective Date
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and expire on the first to occur of December 31, 2000 or the successful
consummation of a restructure of Employer and its subsidiaries above the GB
Holdings, Inc. level (the "Term"), unless sooner terminated as provided herein.
7. SPECIAL TERMINATION PROVISIONS. Notwithstanding the provisions of
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Paragraph 6 above, this Agreement and all parties' rights and obligations
hereunder shall terminate upon the occurrence of any of the following events:
(a) the death of Employee;
(b) the giving of written notice from Employer to Employee of the
termination of this Agreement upon the Complete Disability of
Employee;
(c) the giving of written notice by Employer to Employee of the
termination of this Agreement upon the discharge of Employee for
Cause;
(d) the giving of written notice by Employer or Employee of the
termination of this Agreement without Cause; provided, however, that
such notice must be accompanied by Employer's written tender to
Employee of Employer's unconditional commitment to continue to pay to
Employee the compensation set forth in Paragraph 8(a) of this
Agreement, under the terms and pursuant to the conditions of this
Agreement; or
(e) cause beyond the control of Employer and without its fault or
negligence. Such causes may include, but are not limited to, acts of
god or a public enemy, acts of government in either its sovereign or
contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, riots, freight embargoes, power outages or
unusually severe weather conditions.
8. COMPENSATION TO EMPLOYEE. For and in complete consideration of
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Employee's full and faithful performance of his duties under this Agreement,
Employer hereby covenants and agrees to pay to Employee, and Employee hereby
covenants and agrees to accept from Employer, the following items of
compensation:
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(a) Base Salary. Employer hereby covenants and agrees to pay to Employee,
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and Employee hereby covenants and agrees to accept from Employer, an annual base
salary of Two Hundred Fifteen Thousand and No/100 Dollars ($215,000), effective
on the Effective Date, payable in such equal regular installments as is
Employer's custom and usage. Such base salary shall be exclusive of and in
addition to any other benefits which Employer, in its sole discretion, may make
available to Employee, including, but not limited to, any pension plans, bonus
plans, retirement plans, company life insurance plan, medical and/or
hospitalization plans, or any and all other benefit plans which may from time to
time be in available to executive officers of Employer generally during the Term
of this Agreement.
(b) Bonus. In addition to receiving the base salary prescribed under
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Paragraph 8(a) above, Employee shall also be entitled to receive a bonus in the
amount of $35,000 due and payable on the first to occur of December 31, 2000 or
the successful consummation of a restructure of Employer and its subsidiaries
above the GB Holdings, Inc. level.
(c) Employee Benefit Plans. Employer hereby covenants and agrees that it
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shall include Employee, if otherwise eligible, in any pension plans, retirement
plans, company life insurance plans, medical and/or hospitalization plans,
and/or any and all other benefit plans which may be placed in effect by Employer
during the Term of this Agreement.
(d) Expense Reimbursement. During the Term of this Agreement, Employer
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shall either pay directly or reimburse Employee for Employee's reasonable
expenses incurred for the benefit of Employer in accordance with Employer's
general policy regarding reimbursement, as the same may be amended, modified or
changed from time to time. Such reimbursable expenses shall include, but are not
limited to, reasonable entertainment and promotional expenses, gift and travel
expenses, dues
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and expenses of membership in clubs, professional societies and fraternal
organizations, and the like. Prior to reimbursement, Employee shall provide
Employer with sufficient detailed invoices of such expenses in accordance with
the then applicable guidelines of the Internal Revenue Service so as to permit
Employer to claim a deduction of such expenses.
(e) Licensing Expenses. Employer hereby covenants and agrees that Employer
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shall pay all licensing fees and expenses incurred by Employee in securing and
maintaining such licenses and permits required of Employee in order to perform
his duties under this Agreement.
(f) Vacations and Holidays. Commencing as of the Effective Date of this
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Agreement, Employee shall be entitled to (i) annual paid vacation leave in
accordance with Employer's standard policy therefor, to be taken at such times
as selected by Employee and approved by Employer, and (ii) the following paid
holidays (or, at Employer's option, an equivalent number of paid days off): New
Year's Day, Xx. Xxxxxx Xxxxxx Xxxx, Xx.'s Birthday, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day.
9. LICENSING REQUIREMENTS.
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(a) Employer and Employee hereby covenant and agree that this Agreement may
be subject to the approval of the New Jersey Casino Control Commission and any
other jurisdiction in which Employer or Employer's Affiliates conducts business
(the "Gaming Authorities") pursuant to the provisions of the New Jersey Casino
Control Act and any other applicable law and the regulations promulgated
thereunder. In the event this Agreement is required to be approved by the
Gaming Authorities and is not so approved by the Gaming Authorities, this
Agreement shall immediately terminate and shall be null and void and of no
further force or effect; provided, however, should this Agreement not be
approved by the Gaming Authorities, Employer and Employee shall hereby
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covenant and agree that, with the exception of the provisions of Paragraph 8 of
this Agreement, this Agreement shall be deemed modified and amended so as to
receive the appropriate approval from the Gaming Authorities.
(b) Employer and Employee hereby covenant and agree that, in order for
Employee to discharge the duties required under this Agreement, Employee must
continue to hold casino key employee licenses (the "Licenses") as issued by the
Gaming Authorities pursuant to the terms of the Gaming Acts and as otherwise
required by this Agreement. In the event that any of the Gaming Authorities
objects to the renewal of Employee's License, or either of the Gaming
Authorities refuses to renew Employee's applicable License, Employer, at
Employer's sole cost and expense, shall promptly defend such action and shall
take such reasonable steps as may be required to secure such Gaming Authority's
approval. The foregoing notwithstanding, if such Gaming Authority's refusal to
renew Employee's License arises as a result of any of the events described in
Paragraph 1(a) of this Agreement, Employer's obligations under this Paragraph 9
shall not be operative and Employee shall promptly reimburse Employer upon
demand for any expenses incurred by Employer pursuant to this Paragraph 9.
10. CONFIDENTIALITY. Employee hereby warrants, covenants and agrees that,
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without the prior express written approval of Employer, Employee shall hold in
the strictest confidence and shall not disclose to any person, firm, corporation
or other entity, any and all of Employer's confidential data, including, but not
limited to (i) information or other documents concerning Employer's business,
customers or suppliers; (ii) Employer's marketing methods, files and credit and
collection techniques and files; or (iii) Employer's trade secrets and other
"know-how" or information not of a public nature, regardless of how such
information came into the custody of
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Employee. The warranty, covenant and agreement set forth in this Paragraph 10
shall not expire, shall survive this Agreement and shall be binding upon
Employee without regard to the passage of time or other events.
11. RESTRICTIVE COVENANT. Employee hereby covenants and agrees that,
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during the Term of this Agreement, Employee shall not directly or indirectly,
either as a principal, agent, employee, employer, consultant, partner,
shareholder of a closely held corporation or shareholder in excess of five
percent (5%) of a publicly traded corporation, corporate officer or director, or
in any other individual or representative capacity, engage or otherwise
participate in any manner or fashion in any business that is in competition in
any manner whatsoever with the principal business activity of Employer or
Employer's Affiliates, in or about any state in which Employer or Employer's
Affiliates are licensed to conduct casino operations (the "Operating States"),
including any navigable waterways which are wholly within the Operating States,
which are partly within the Operating States and partly without the Operating
States, or which form a boundary between the Operating States and any other
state or body public. Employee hereby further acknowledges and agrees that the
restrictive covenant contained in this Paragraph 11 is reasonable as to
duration, terms and geographical area and that the same protects the legitimate
interests of Employer and Employer's Affiliates, imposes no undue hardship on
Employee and is not injurious to the public.
12. BEST EVIDENCE. This Agreement shall be executed in original and
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"Xerox" or photostatic copies and each copy bearing original signatures in ink
shall be deemed an original.
13. SUCCESSION. This Agreement shall be binding upon and inure to the
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benefit of Employer and Employee and their respective successors and assigns.
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14. ASSIGNMENT. Employee shall not assign this Agreement or delegate his
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duties hereunder without the express written prior consent of Employer thereto.
Any purported assignment by Employee in violation of this Paragraph 14 shall be
null and void and of no force or effect. Employer shall have the right to
assign this Agreement freely; provided, however, that in the event of such an
assignment by Employer and the assignee subsequently defaults under the terms of
this Agreement, Employer shall remain liable for compliance with the terms of
Paragraph 8 of this Agreement.
15. AMENDMENT OR MODIFICATION. This Agreement may not be amended,
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modified, changed or altered except by a writing signed by both Employer and
Employee.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas in effect on the Effective Date
of this Agreement.
17. NOTICES. Any and all notices required under this Agreement shall be in
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writing and shall either hand-delivered; mailed by certified mail, return
receipt requested; or sent via telecopier addressed to:
TO EMPLOYER: Greate Bay Casino Corporation
Two Xxxxxxxx Xxxxx, Xxxxx 0000
00000 Xxxx Xxxx, XX 48
Xxxxxx, Xxxxx 00000
Attention: General Counsel
TO EMPLOYEE: Xxxx X. Xxxx
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
All notices hand-delivered shall be deemed delivered as of the date
actually delivered. All notices mailed shall be deemed delivered as of three (3)
business days after the date postmarked. All notices sent via telecopier shall
be deemed delivered as of the next business day following the
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date of the confirmation of delivery. Any changes in any of the addresses listed
herein shall be made by notice as provided in this Paragraph 17.
18. INTERPRETATION. The preamble recitals to this Agreement are
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incorporated into and made a part of this Agreement. Titles of paragraphs are
for convenience only and are not to be considered a part of this Agreement.
19. SEVERABILITY. In the event any one or more provisions of this
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Agreement is declared judicially void or otherwise unenforceable, the remainder
of this Agreement shall survive and such provisions shall be deemed modified or
amended so as to fulfill the intent of the parties hereto.
20. DISPUTE RESOLUTION. Except for equitable actions seeking to enforce
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the provisions of Paragraphs 10 and 11 of this Agreement, jurisdiction and venue
for which is hereby granted to the District Court of Dallas County, Texas, any
and all claims, disputes or controversies arising between the parties hereto
regarding any of the terms of this Agreement or the breach thereof, on the
written demand of either of the parties hereto, shall be submitted to and be
determined by final and binding arbitration held in Dallas, Texas in accordance
with the Employment Dispute Resolution Rules of the American Arbitration
Association. This Agreement to arbitrate shall be specifically enforceable in
any court of competent jurisdiction.
21. WAIVER. None of the terms of this Agreement, including this Paragraph
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21, or any term, right or remedy hereunder shall be deemed waived unless such
waiver is in writing and signed by the party to be charged therewith and in no
event by reason of any failure to assert or delay in asserting any such term,
right or remedy or similar term, right or remedy hereunder.
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22. PAROL. This Agreement constitutes the entire agreement between
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Employer and Employee with respect to the subject matter hereto and this
Agreement supersedes any prior understandings, agreements or undertakings by and
between Employer and Employee with respect to the subject matter hereof.
23. REIMBURSEMENT OF HOLLYWOOD CASINO CORPORATION, ETC. Each of the
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parties hereto agrees and acknowledges that (a) Employee is currently on the
payroll of Hollywood Casino Corporation, a Delaware corporation ("HCC"), and
shall remain on such payroll for a period of time mutually agreeable to HCC and
Employee, (b) to the extent that HCC pays the compensation to Employee owing
under Paragraph 8 of this Agreement, Employer shall promptly reimburse HCC for
such payments and (c) Employer shall be responsible for paying any compensation
owing under Paragraph 8 of this Agreement not paid by HCC.
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IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND THEREBY, the parties
hereto have executed and delivered this Agreement as of the year and date first
above written.
ATTEST: GREATE BAY CASINO CORPORATION
/s/ Xxxxxxx X. Xxxxx By: /s Xxxxxx X. Xxxxx III
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Secretary Name: Xxxxxx X. Xxxxx III
Title: President
/s/ Xxxx X. Xxxx
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XXXX X. XXXX
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