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EXHIBIT 10.99-4
EMPLOYMENT AGREEMENT
XXXXXXX XXXXXXXX
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EXECUTIVE EMPLOYMENT AGREEMENT
("Agreement")
EXECUTIVE EMPLOYMENT AGREEMENT, effective November 22, 1999 ("Effective
Date"), by and between Black Hawk Gaming & Development Company, Inc., a Colorado
corporation (the "Company") and Xxxxxxx Xxxxxxxx (the "Executive").
WHEREAS, the Company desires to continue to employ the Executive on a
full-time basis, and the Executive desires to be so employed by the Company,
from and after the date of this Agreement it being specifically acknowledged by
each party hereto that upon execution and delivery of this Agreement the
Employment Agreement dated November 12, 1996 between the parties hereto shall be
terminated and superseded by this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
ARTICLE I
EMPLOYMENT DUTIES AND BENEFITS
SECTION 1.1 EMPLOYMENT. The Company hereby employs the Executive as Vice
President, Secretary and Treasurer of the Company. The Executive accepts such
employment and agrees to perform the duties and responsibilities assigned to him
under this Agreement.
SECTION 1.2 DUTIES AND RESPONSIBILITIES. The Executive agrees to devote his
full time to the business of the Company. The Executive shall perform such
duties as are assigned to him by the President or Chief Executive Officer of the
Company and as are reasonably consistent with his position.
SECTION 1.3 WORKING FACILITIES; LOCATION. The Executive shall be furnished
with facilities and services suitable to his position and adequate for the
performance of his duties under this Agreement. The Executive shall be employed
in Denver and/or Black Hawk, Colorado and shall not be required to re-locate
without his consent, which may be withheld in his sole discretion.
SECTION 1.4 VACATIONS. The Executive shall be entitled each year during the
Term, as defined below, to a vacation with full salary and benefits, for the
number of weeks set forth in the Company's Employee Handbook.
SECTION 1.5 EXPENSES. The Executive is authorized to incur reasonable
expenses for promoting the business of the Company in all respects, including
expenses for entertainment, travel and similar items. The Company will promptly
reimburse the Executive for all such expenses upon the presentation by the
Executive, from time-to-time, of an itemized account of such expenditures.
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SECTION 1.6 VEHICLE ALLOWANCE. The Executive shall be paid a vehicle
allowance of $500 per month, or at his election, the Company shall lease for not
more than $500 per month a vehicle suitable for travel from Denver to Black
Hawk, Colorado in all weather conditions.
SECTION 1.7 BENEFIT PLANS. From the effective date of this Agreement, the
Executive shall be entitled to participate in benefit plans provided to
employees of the Company. Such participation shall be based upon the policies
established in the Company's Employee Handbook as applicable to Executive.
ARTICLE II
COMPENSATION
SECTION 2.1 BASE SALARY. The Company shall pay to the Executive a Base
Salary of $111,000 in the first year of this contract, increasing by $5,000 in
the second year and increasing an additional $5,000 in the third year, payable
in accordance with the Company's payroll and withholding policies.
SECTION 2.2 BONUS AND BONUS PLAN PARTICIPATION. The Executive will be
entitled to share in an annual bonus for the fiscal year ended December 31, 1999
if such ends during the Term in such amount as is determined in the sole
discretion of the Compensation Committee of the Company's Board of Directors
upon the recommendation of the Company's Chief Executive Officer. For fiscal
years ended December 31, 2000 and thereafter, if such ends during the Term, the
Executive will be entitled to share in a quantified bonus plan to be adopted by
the Board of Directors of the Company during the year 2000.
SECTION 2.3 STOCK OPTIONS. The Company will grant as of the date of this
Agreement to the Executive, 15,000 stock options under the Company's 1994 or
1996 Incentive Stock Option Plan as follows: All options will have an exercise
price of $6.25, vesting as follows: the first 5,000 options will vest on
November 22, 2000, the second 5,000 options will vest on November 22, 2001 and
the final 5,000 options will vest on November 22, 2002.
ARTICLE III
TERM OF EMPLOYMENT AND TERMINATION
SECTION 3.1 TERM. This Agreement shall be for a period of three years
commencing on November 22, 1999 and ending on November 22, 2002, subject,
however, to termination during such period as provided in this Article (the
"Term").
SECTION 3.2 TERMINATION BY THE COMPANY WITH CAUSE. The Company may
terminate the Executive's employment, at any time, for cause upon ten days'
written notice and opportunity for the Executive to remedy any non-compliance
with the terms of this Agreement (if such non-compliance can be remedied).
Grounds for termination "for cause" shall be one or more of the following: (i)
intentional and material breach of his duty of
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loyalty or care to the Company, (ii) gross negligence or willful misconduct in
performance of his duties during the course of his employment, (iii) persistent
failure to abide by the corporate policies and procedures set forth in the
Company's Employee Handbook; (iv) persistent failure to execute the reasonable
and lawful instructions of the Company's Chief Executive Officer or President
relating to the operation of the Company's business, and (v) conviction of any
felony crime or loss of his gaming license in Colorado. Upon the date of
termination of the Executive's employment pursuant to this Section 3.2, the
Company's obligation to pay any compensation including bonuses shall terminate,
at which time the Company shall be responsible for compensating the Executive
for any unpaid salary and vacation time not taken. Subject to this exception and
the obligation of the Company to compensate the Executive through the notice
period, no other compensation shall be payable to the Executive should this
Agreement be terminated pursuant to this Section 3.2.
SECTION 3.3 TERMINATION OR CESSATION OF EMPLOYMENT WITHOUT CAUSE. In the
event that Executive's employment is terminated or ceased without cause, all
compensation shall cease, but the Company shall be obligated to compensate the
Executive with lump sum severance pay equal to the present value of his salary
otherwise payable during the Term of this Agreement. In the event Executive's
employment is terminated pursuant to this Section 3.3, the Executive shall be
entitled to participate in the bonus payable pursuant to Section 2.2 with
respect to the year in which his employment is terminated pro rated for the year
based on the number of full months employed during such year compared to 12; and
provided further that the non-competition covenant in Section 4.1(c) below shall
be automatically terminated.
SECTION 3.4 TERMINATION UPON DEATH OF THE EXECUTIVE. In addition to any
other provision relating to termination, this Agreement shall terminate upon the
Executive's death. In such event, all unpaid compensation, compensation for
vacation time not taken by the Executive and all expense reimbursements due to
the Executive shall be paid to the Executive's estate. In the event Executive's
employment is terminated pursuant to this Section 3.4, the Executive's estate
shall be entitled to a death benefit equal to six months salary and to
participate, in the bonus payable pursuant to Section 2.2 with respect to the
year in which his employment is terminated pro rated for the year based on the
number of full months worked during such year compared to 12.
ARTICLE IV
CONFIDENTIALITY AND COMPETITION
SECTION 4.1 FURTHER OBLIGATIONS OF THE EXECUTIVE DURING AND AFTER
EMPLOYMENT.
(a) The Executive agrees that during the term of his employment under
this Agreement, he will engage in no other business activities which are or
may be competitive with, or which might place him in a competing position
to that of, the Company or any subsidiary of the Company.
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(b) The Executive realizes that during the course of his employment,
the Executive will have produced and/or have access to confidential
business plans, information, business opportunity records, notebooks, data,
specifications, trade secrets, customer lists and account lists of the
Company and its affiliates ("Confidential Information"). Therefore, during
or subsequent to his employment by the Company, or by an affiliate, the
Executive agrees to hold in confidence and not to directly or indirectly
disclose or use or copy or make lists of any such Confidential Information,
except to the extent authorized by the Company in writing. All records,
files, business plans, documents, equipment and the like, or copies
thereof, relating to Company's business, or the business of an affiliated
company, which the Executive shall prepare, or use, or come into contact
with, shall remain the sole property of the Company, or of an affiliated
company, and shall not be removed from the Company's or the affiliated
company's premises without its written consent, and shall be promptly
returned to the Company upon termination or resignation of employment with
the Company or its affiliated companies.
(c) Because of his employment by the Company, the Executive will have
access to trade secrets and confidential information about the Company, its
business plans, its business accounts, its business opportunities, its
expansion plans into other geographic areas and its methods of doing
business. The Executive agrees that for the Term of this Agreement and an
additional period of one year he will not:
(i) engage or participate, directly or indirectly, as an owner,
partner, shareholder, consultant, director, officer, employee, agent
or otherwise in any business which owns, operates, manages or provides
consulting services to a gaming casino in Black Hawk, Colorado or any
other city or town in which the Company has any significant gaming
activities; or
(ii) take any actions which are calculated to persuade any
employee, vendor or supplier of the Company to terminate or modify in
any adverse manner their association with the Company.
(d) In the event a court of competent jurisdiction finds any provision
of this Section 4.1 to be so overbroad as to be unenforceable, then such
provision shall be reduced in scope by the court, to the extent deemed
necessary by the court to render the provision reasonable and enforceable.
Executive acknowledges and agrees that any breach of this Agreement by
Executive would cause immediate irreparable harm to the Company. Executive
agrees that should he violate any of the terms and conditions of this
Agreement, the Company, at its sole discretion, shall be entitled to seek
and obtain immediate injunctive relief and enjoin further and future
violations of this Agreement.
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ARTICLE V
DISABILITY AND ILLNESS
SECTION 5.1 DISABILITY AND SALARY CONTINUATION.
(a) Definition of Total Disability. For purposes of this Agreement,
the terms "totally disabled" and "total disability" shall mean disability
as defined in any total disability insurance policy or policies, if any, in
effect with respect to the Executive. If no insurance policy is in effect,
"total disability" shall mean a medically determinable physical or mental
condition which, in the opinion of two physicians chosen by the mutual
consent of the parties, renders the Executive unable to perform
substantially all of the duties required pursuant to this Agreement. Total
disability shall be deemed to have occurred on the date of the disabling
injury or onset of the disabling illness, as determined by the two
independent physicians. In the event that the two independent physicians
are unable to agree as to the date of the disabling injury or onset of the
disabling illness, such date shall be deemed to be the later of the two
dates determined by the physicians chosen pursuant to this Section 5.1(a).
(b) Salary Continuation. If the Executive becomes totally disabled
during the term of this Agreement, his full salary shall be continued for
90 days from the date of the disabling injury or onset of the disabling
illness as determined in accordance with the provisions of Section 5.1(a)
above and thereafter the Executive's employment may be terminated in
accordance with the provisions of Section 3.3.
SECTION 5.2 ILLNESS. If the Executive is unable to perform the services
required under this Agreement by reason of illness or physical injury not
amounting to total disability, also as determined in this Article, the
compensation otherwise payable to the Executive under this Agreement shall be
continued for a period of six months and he shall be entitled to participate in
the bonus payable in Section 2.2 with respect to the year in which the illness
occurred prorated for the year based on the number of months worked during such
year compared to 12 after which the Company shall have no further obligation to
the Executive.
ARTICLE VI
GENERAL MATTERS
SECTION 6.1 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Colorado and shall be construed in accordance therewith.
SECTION 6.2 NO WAIVER. No provision of this Agreement may be waived except
by an agreement in writing signed by the waiving party. A waiver of any term or
provision shall not be construed as a waiver of any other term or provision.
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SECTION 6.3 AMENDMENT. This Agreement may be amended, altered or revoked at
any time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes, signed by each of the parties.
SECTION 6.4 BENEFIT. This Agreement shall be binding upon the Executive and
the Company, and shall not be assignable by either party without the other
party's written consent.
SECTION 6.5 SEVERABILITY. If any provision of this Agreement is declared by
any court of competent jurisdiction to be invalid for any reason, such
invalidity shall not affect the remaining provisions. On the contrary, such
remaining provisions shall be fully severable, and this Agreement shall be
construed and enforced as if such invalid provisions had not been included in
the Agreement.
SECTION 6.6 EFFECTIVE DATE. The effective date of this Agreement shall be
November 12, 1999.
SECTION 6.7 ARBITRATION. The Company and the Executive expressly agree that
all disputes arising out of this Agreement shall be resolved by arbitration in
accordance with the following provisions. Either party must demand in writing
such arbitration within 10 days after the controversy arises by sending a notice
to arbitrate to both the other party and to the American Arbitration Association
(hereinafter referred to as "AAA"). The controversy shall then be arbitrated
pursuant to the rules promulgated by the AAA at the AAA's offices located in
Denver, Colorado. The parties will select by mutual agreement the arbitrator or
arbitrators (hereinafter collectively referred to as "arbitrator") to hear and
resolve the controversy. The arbitrator shall be governed by the express terms
of this Agreement and the laws of the State of Colorado. The arbitrator's
decision shall be final and binding on the parties and shall bar any suit,
action, or proceeding instituted in any federal, state, or local court or
administrative tribunal. Notwithstanding the preceding sentence, the
arbitrator's judgment may be entered in any court of competent jurisdiction.
These arbitration provisions shall survive the termination of this Agreement.
BLACK HAWK GAMING & DEVELOPMENT
COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
EXECUTIVE:
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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