EXHIBIT 10.76
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Executive Agreement") is made and entered
into as of the 1st day of January, 2003 by and between Four Queens, Inc., a
Nevada corporation and wholly-owned subsidiary of Elsinore Corporation
("Elsinore"), with its principal offices located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxx 00000 (hereinafter referred to as the "COMPANY"), and Xxxx X.
Xxxxxxx Xxxxxxxxxxxx (hereinafter referred to as "EXECUTIVE").
WHEREAS, EXECUTIVE possesses considerable knowledge and expertise relating to
the management of gaming properties and hotels and casinos; and
WHEREAS, the COMPANY desires to avail itself of such knowledge and expertise by
employing EXECUTIVE, and EXECUTIVE desires to accept such employment with the
COMPANY, under the terms and conditions hereinafter stated in this Executive
Agreement;
NOW, THEREFORE, in consideration of EXECUTIVE'S employment with the COMPANY, the
mutual covenants and obligations hereinafter set forth, and for other good and
valuable consideration, the receipt and value of which is hereby acknowledged,
the parties agree as follows:
SECTION 1. Term of Executive Agreement
EXECUTIVE'S employment with the COMPANY under this Executive Agreement commenced
on January 1, 2003 (the "Commencement Date") and shall continue until the close
of business on December 31, 2003 (the "Expiration Date"), unless terminated
earlier as provided anywhere else in this Executive Agreement. The Term of this
Executive Agreement may be renewed or extended by the COMPANY, in its sole and
absolute discretion. "Term" is defined in this Executive Agreement to mean the
current one (1) year term of EXECUTIVE's employment pursuant to this Executive
Agreement commencing on the Commencement Date and ending on the Expiration Date,
subject to prior termination as provided herein and subject to any renewal term
of employment timely approved by the COMPANY in writing. If the COMPANY fails to
renew or extend the Term and this Executive Agreement by written addendum hereto
before the Expiration Date, or if EXECUTIVE's employment with the COMPANY is not
terminated by written notice from the COMPANY prior to or effective as of the
Expiration Date, which notice is delivered prior to the Expiration Date, then
EXECUTIVE thereafter will be deemed to be an at-will employee pursuant to the
laws of the State of Nevada, subject, in any case, to Section 5.3 below. This
means EXECUTIVE may quit or resign at any time thereafter, for any reason or no
reason, with or without notice, and the COMPANY may terminate EXECUTIVE at any
time, for any reason or no reason, with or without notice. As an at-will
employee, there is no promise by the COMPANY that employment will continue for
any set period of time and there is no promise by either EXECUTIVE or the
COMPANY that employment will be terminated only under particular circumstances.
Any exception to this policy of employment-at-will may only be made in writing
signed by the President of the COMPANY. In particular, this policy is not
modified by any statements, express or implied, contained in any employment
handbook, application, memoranda, policy, procedure, or other materials or
statements provided to EXECUTIVE in connection with her employment.
SECTION 2. Duties of Employee
2.1 Throughout the term of this Executive Agreement, EXECUTIVE shall be employed
as Executive Director of Finance for the Four Queens Hotel & Casino. EXECUTIVE
agrees to devote her full time efforts to her position with the COMPANY.
2.2 EXECUTIVE agrees to observe and comply with the rules and regulations as
adopted by the COMPANY, either orally or in writing, regarding performance of
her duties. The COMPANY shall have the power to direct, control and supervise
the manner of and the time in which EXECUTIVE shall perform her duties for the
COMPANY.
2.3 EXECUTIVE agrees that she will, at all times faithfully and industriously
and to the best of her ability, experience and talents, perform all of the
duties that may be required under this Executive Agreement. Such duties shall be
rendered primarily at the office of the COMPANY in Las Vegas, Nevada; although
EXECUTIVE may be required to travel at the sole expense of the COMPANY to such
places as may be required to conduct business on behalf of the COMPANY. However,
such travel must be at reasonable times, and shall be required in such a way as
not to impose a burden upon EXECUTIVE.
SECTION 3. Compensation
3.1 Base Salary: During the term of this Executive Agreement, EXECUTIVE shall
receive from the COMPANY an annual base salary of One Hundred Forty-Five
Thousand Dollars, ($145,000.00) ("Base Salary"), less legally required
deductions, payable in biweekly installments, or at any other intervals mutually
agreed upon in writing by the parties. Such Base Salary shall be reviewed no
less than annually for increase at the discretion of the COMPANY.
3.2 Other Compensation:
EXECUTIVE may receive, in addition to his base salary, other compensation
pursuant to incentive and/or bonus programs which the COMPANY may, in its sole
discretion, establish from time to time.
3.3 Other Benefits.
EXECUTIVE shall be permitted during the Term, if and to the extent eligible, to
participate in any group life, hospitalization or disability insurance plan,
health program (collectively "Health Benefits"), deferred compensation plan, or
pension plan or similar benefit plan of the COMPANY, which may be available
generally to other senior executives and managers of the COMPANY.
3.4 Business and Travel Expenses:
Subject to such policies applicable to senior executives generally, as may from
time to time be established by the Board of Directors, the COMPANY shall pay or
reimburse the EXECUTIVE for all reasonable expenses actually incurred or paid by
the EXECUTIVE during the Term in the performance of EXECUTIVE'S services under
the Agreement, upon presentation of expense statements or vouchers or such other
supporting information as it may require.
3.5 Vacation:
The EXECUTIVE shall be entitled to four weeks of vacation per each twelve-month
period following the EXECUTIVE'S anniversary date. The EXECUTIVE will accrue at
a rate of 1 2/3 day per month. The EXECUTIVE may carry forward up to one week of
unused vacation accrued in the twelve-month period to the next twelve-month
period, unless otherwise approved in writing by the General Manager of the
COMPANY.
SECTION 4: Illness or Disability of Employee
If during the Term, the EXECUTIVE becomes physically or mentally disabled,
whether totally or partially, so that the EXECUTIVE is unable to substantially
perform his services thereunder for (a) a period of three consecutive months or
(b) for shorter periods aggregating 100 days during any twelve month period the
COMPANY may at any time after the last day of the three consecutive months of
disability or the day on which the shorter periods of disability equal an
aggregate of 100 days, by written notice to the EXECUTIVE, terminate the Term of
the EXECUTIVE'S employment thereunder.
SECTION 5: Termination of Executive Agreement
This Executive Agreement may be terminated before the expiration of the Term as
set forth in Section 1 of this Executive Agreement as follows:
5.1 Termination Without Cause:
a) EXECUTIVE may terminate this Executive Agreement at any time without cause
by giving the COMPANY two weeks written notice of such termination. Upon
such termination, the COMPANY shall have no further obligations to the
EXECUTIVE; provided however, that if the EXECUTIVE provides two weeks
written notice, the EXECUTIVE shall be entitled to payment for any earned
and accrued but unused vacation.
b) The COMPANY may terminate this Executive Agreement at any time without
cause by giving the EXECUTIVE written notice. If the COMPANY terminates the
EXECUTIVE'S employment without cause, COMPANY shall pay EXECUTIVE one (1)
year salary, less standard withholdings and deductions, payable in biweekly
installments. COMPANY shall also pay for EXECUTIVE's COBRA benefits for a
period of one (1) year. The EXECUTIVE shall receive payment for any earned
and accrued but unused vacation up through the date of notice of
termination.
5.2 Termination For Cause:
The COMPANY may, at any time during the Term, immediately terminate this
Executive Agreement and all of its obligations hereunder for cause by giving
EXECUTIVE written notice of the termination. The term "for cause" shall mean any
one or more of the following: (i) EXECUTIVE'S material breach of this Executive
Agreement; (ii) EXECUTIVE'S negligent or willful misperformance of her duties;
(iii) EXECUTIVE'S conviction of a felony or any other crime involving moral
turpitude or dishonesty which, in the good faith opinion of the COMPANY would
impair EXECUTIVE'S ability to perform her duties or harm the COMPANY'S business
reputation; (iv) EXECUTIVE'S failure or refusal to comply with the COMPANY
policies, standards or regulations; (v) EXECUTIVE'S unauthorized disclosure of
the COMPANY'S or Elsinore's trade secrets and/or other confidential business
information. (vi) EXECUTIVE'S failure to obtain or maintain any gaming license
or approval from the Nevada Gaming Control Board or any other licensing or
regulatory agency necessary for EXECUTIVE to perform her duties and obligations
under this Executive Agreement. The COMPANY, in its sole discretion, shall
decide whether the "for cause" definition has been satisfied.
5.3 Termination by Non-Renewal of Executive Agreement
In the event this Executive Agreement expires at the end of the Term without
renewal by the COMPANY and EXECUTIVE is not terminated by written notice from
the COMPANY prior thereto or effective as of the Expiration Date, such that
EXECUTIVE continues to be employed by the COMPANY as an at-will employee
pursuant to Section 1 above, and if EXECUTIVE is thereafter terminated, except
for cause, prior to December 31st of the next calendar year following the
calendar year in which the Term expires, EXECUTIVE shall be entitled to the Base
Salary, less standard withholdings and deductions, payable in biweekly
installments, for the remainder of such next calendar year following the
calendar year in which the Term expires. COMPANY shall pay for EXECUTIVE's COBRA
benefits for that same period. EXECUTIVE shall receive payment for any earned
and accrued but unused vacation up through the date of termination.
5.4 Termination Upon Disability
If this Executive Agreement is terminated as a result of EXECUTIVE's disability,
as determined under Section 4, COMPANY will pay EXECUTIVE her Base Salary
through the remainder of the Term.
5.5 Termination by Change of Ownership or Control
(a) In the event of a change in ownership or control of COMPANY as hereinafter
defined. EXECUTIVE shall have two options: (1) elect to be employed with
the entity or person having acquired such control; or (2) terminate this
Executive agreement. In the event EXECUTIVE accepts the second option,
EXECUTIVE shall be entitled to one (1) year's Base Salary, less standard
withholdings and deductions, payable in biweekly installments. COMPANY
shall also pay for EXECUTIVE'S COBRA benefits for a period of one (1) year.
EXECUTIVE must exercise either of the two foregoing options by the time the
change in control or ownership becomes effective.
For purposes of this Agreement, a "Change of Ownership or Control" shall
mean the following: all or substantially all of the assets of the COMPANY
are directly or through transfer of equity interests transferred or
otherwise disposed of in one or a series of related transactions after
which (1) the COMPANY ceases to own directly or indirectly substantially
all equity interests in Four Queens Hotel and Casino; or (2) Elsinore
ceases to own directly or indirectly at least fifty-one percent (51%) of
all outstanding shares of COMPANY. For purposes of the Executive Agreement,
the parties understand and agree that any transfer of ownership between or
among funds managed by Morgens, Waterfall, Vintiadis & the COMPANY, Inc.
shall not constitute a "Change of Ownership or Control."
(b) If as a result of a change of ownership or control, EXECUTIVE elected
option (1), above, with a successor owner and such successor owner
restructures EXECUTIVE'S position within said term of the Executive
Agreement such that EXECUTIVE is demoted, her job responsibilities and
duties are materially diminished, or her base salary and other benefits are
materially reduced, and, as a result thereof, EXECUTIVE resigns at such
time, the successor owner shall pay to EXECUTIVE one (1) year's Base
Salary, less standard withholdings and deductions, payable in biweekly
installments. COMPANY shall also pay for EXECUTIVE'S COBRA benefits for a
period of one (1) year.
5.6 Termination by Death:
If the EXECUTIVE dies during the Term, this Agreement shall terminate and the
COMPANY shall have no further obligations under this Agreement.
SECTION 6. Records Of The COMPANY
EXECUTIVE acknowledges and agrees that all books, records, reports, accounts,
documents or other information of any kind relating in any manner to the
COMPANY'S business or to any clients, customers, suppliers, distributors or
third parties doing business with the COMPANY, whether prepared or paid for by
EXECUTIVE or otherwise, coming into EXECUTIVE'S possession, shall be the
exclusive property of the COMPANY and shall be returned immediately to the
COMPANY upon termination of employment for any reason, or at the COMPANY'S
request at any time.
SECTION 7. Notice
Any notices hereunder shall be in writing and shall be effective upon personal
delivery or five (5) days after deposit in the U.S. mail, registered or
certified, return receipt requested, postage prepaid, addressed to the parties
at the following addresses or to such other address(es) as the party to receive
such notice shall designate in writing:
If to EXECUTIVE: XXXX XXXXXXX XXXXXXXXXXXX
Last known address on file with COMPANY
If to the COMPANY: FOUR QUEENS, INC.
Attn: President / General Manager
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
SECTION 8. Governing Law
This Executive Agreement shall be governed by, interpreted under, and construed
and enforced in accordance with the laws of the State of Nevada, without regard
to its principles of conflicts of laws. The exclusive forum for adjudication of
any matter pertaining to this Executive Agreement shall be the federal and state
courts located in Xxxxx County, Nevada.
SECTION 9. Severability
If any clause or provision of this Executive Agreement is adjudged invalid or
unenforceable by any court of competent jurisdiction or by operation of any
applicable law, it shall not affect the validity of any other clause or
provision, which shall remain in full force and effect. If a court of competent
jurisdiction finds that any Sections of this Executive Agreement or any portions
thereof are invalid or unenforceable, the court may modify the Sections, or any
portion thereof, to make them enforceable.
SECTION 10. Assignment
The parties agree that in the event of a change of ownership or control, the
COMPANY may assign this Executive Agreement to the person or entity acquiring
ownership or control should EXECUTIVE elect the first option under section 5.5.
EXECUTIVE acknowledges and agrees that the duties and obligations of EXECUTIVE
under this Executive Agreement are personal and are not assignable or delegable
by the EXECUTIVE.
SECTION 11. Attorneys' Fees
In the event any lawsuit is commenced in relation to this Executive Agreement,
each party to the action shall pay its own attorneys' fees and costs of suit.
SECTION 12. Confidentiality
The existence of this Executive Agreement and its terms are confidential and
shall not be disclosed by EXECUTIVE or the COMPANY, except as may be required
pursuant to a Change in Ownership or Control, by law or to enforce the
provisions hereof.
SECTION 13. Waiver
No course of dealing or delay between the parties shall operate as a waiver of
the rights of any party to this Executive Agreement. No default, covenant, or
condition of this Executive Agreement may be waived other than in writing.
SECTION 14. Captions and Headings
The Captions and Headings in this Executive Agreement are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe
the scope of this Executive Agreement or the intent of any provision herein.
SECTION 15. Miscellaneous
All references to payment or sums of money in this Executive Agreement shall
mean United States currency only.
SECTION 16. Entire Executive Agreement
The parties acknowledge and agree that this Executive Agreement constitutes the
entire understanding and agreement of the parties concerning the subject matter
hereof, and supersedes all prior Executive Agreements, both oral and written. It
is also understood and agreed by both parties that the terms and provisions of
this Executive Agreement are contractual and not merely recital. Both EXECUTIVE
and the COMPANY further understand and agree that unless reduced to a writing
and signed by both parties, no amendments, revisions, modifications or
extensions to this Executive Agreement will be binding and/or enforceable upon
either party.
SECTION 17. Warranty
The Officer of the COMPANY signing this Executive Agreement warrants that he/he
is authorized and has the power and authority to sign this Executive Agreement
on behalf of the COMPANY.
DATED this 30th day of December, 2002.
FOUR QUEENS, INC. EXECUTIVE EMPLOYEE:
By: /s/Xxxxxx X. Xxxxx /s/Xxxx X. Xxxxxxx Xxxxxxxxxxxx
Xxxxxx X. Xxxxx Xxxx X. Xxxxxxx Xxxxxxxxxxxx
Its: President
