Exhibit 10.1
EMPLOYMENT AGREEMENT
(Renewal)
This Employment Agreement ("Agreement") is made and entered into as of
the 24th day of December, 2004 ("Effective Date") by and between the River Rock
Entertainment Authority ("Authority"), a governmental instrumentality of the Dry
Creek Rancheria Band of Pomo Indians ("Tribe"), and Xxxxxxx Xxxxxx (the
Employee"), and shall renew that certain Employment Agreement ("Initial
Agreement") made and entered into as of the 24th day of December, 2001 by and
between the Tribe, as predecessor in interest to the Authority, and Employee.
The parties hereto expressly intend that this Agreement describe
Employee's relationship as an employee of Tribe and not as a contractor,
including but not limited to the meaning of such term as is used in 25 USC ss.
2711 and 25 CFR ss. 502.15. The parties have purposefully structured the terms
and provisions of this Agreement consistent with, and in furtherance of, this
expressed intent.
l. EMPLOYMENT. On and subject to the terms and conditions of this
Agreement, the Authority hereby renews Employee's employment, and Employee
hereby accepts continued employment with the Authority, as the CEO of the
Authority and general manager of the Authority's gaming operation known as the
River Rock Casino ("Gaming Operation"). Employee shall assume overall
responsibility for the development and operation of all gaming related entities
(together with the Gaming Operation, the "Gaming Enterprise"). Employee shall
report to, be accountable to and work under the authority of the Authority's
Board of Directors (the "Board") or such tribal agency or tribal entity as the
Authority, or if the Authority shall cease to exist, the Tribe may hereafter
designate, which thereafter shall be referred to herein as the "Board".
2. REPORTING. Employee shall report directly to the Board with respect
to all design, development, operations and expenditures of the Gaming
Enterprise, and otherwise to the extent requested by the Board. Without limiting
the foregoing, Employee shall perform such executive duties as are commonly
attendant upon the office of a casino CEO and general manager and such further
executive duties as may be specified from time to time by the Board, which shall
include:
(a) Continuing overall responsibility for directing and supervising the
design, development, construction and operation of the Gaming
Enterprise and providing reports and advice to the Board with respect
to such matters on a regular basis;
(b) Planning and preparation for food and beverage and other services
of the Gaming Operation;
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(c) Recruitment and hiring of managers, supervisors and employees of
the Gaming Operation;
(d) Preparation and implementation of training programs;
(e) Overall direction and management of employees of the Gaming
Operation, including but not limited to selecting, assigning,
re-assigning, structuring or restructuring, employing and terminating
such employees (subject to approval by the Board of any express
employment contract for a term of years), and the implementation of
personnel and wage and benefit policies established by the Board for
employees of the Gaming Operation;
(f) Preparation of annual operating budgets and required modifications
to such budgets, subject to the approval of the Board, and
implementation of such budgets;
(g) Development and implementation of programs for training of Tribal
members for supervisory and management positions in accordance with the
preference policies of the Tribe and the Gaming Operation;
(h) Preparation, implementation and direction of Authority compliance
programs, including assurance that the Gaming Operation meets the
requirements of the Indian Gaming Regulatory Act, the Tribal-State
Gaming Compact between the Tribe and the State of California (the
"Compact"), the laws and ordinances of the Tribe and other applicable
laws as well as agreements to which the Tribe and/or the Authority is a
party.
(i) Preparation, implementation and direction of programs to assure
that the Gaming Operation meets all federal, Tribal and Compact
requirements for internal controls, including establishment and
enforcement of policies designed to maintain the integrity of all
gaming operations for the protection of the Tribe, the Authority, the
Board, the Gaming Operation, its customers and the public in accordance
with law and standards in the gaming industry;
(j) Upon the direction of the Board, preparation of strategic plans for
future development of the Gaming Enterprise's business and advising and
consulting with the Authority in regard to such plans.
3. TERM. The term of this Agreement ("Term") shall commence on the
Effective Date and shall end three (3) years after the Effective Date, unless
terminated earlier by the parties as provided herein. Notwithstanding the Term
as described herein, the parties acknowledge that this Agreement is a renewal of
the Initial Agreement, and it is the intent of the parties that there shall be
no gap in time or the rights and obligations of the parties hereunder or
thereunder between the expiration of the term of the Initial Agreement and the
commencement of the Term, and that Employee's employment shall be continuous.
4. FULL-TIME SERVICE. Employee agrees that during the Term of this
Agreement unless earlier terminated, he will commit his full time and energies
to the duties imposed hereby and, further, agrees that during the term of this
Agreement he will not (whether as an officer, director, member, employee,
partner, proprietor, investor, security holder, lender, associate, consultant,
adviser or otherwise) directly or indirectly, engage in the business of the
Gaming Enterprise as a competitor or otherwise without the express prior written
consent of the Board in its sole discretion.
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5. COMPENSATION.
(a) Employee will be paid a base salary of Three Hundred Thousand
Dollars ($300,000.00) per annum ("Base Compensation"), subject to
applicable withholding taxes and required deductions.
(b) Base Compensation shall be paid every other workweek on the day
established by the Board for all employees of the Gaming Operation.
(c) Upon renewal of this Agreement, Employee's Base Compensation shall
be increased annually, effective on the anniversary of the Effective
Date, by five percent (5%), unless otherwise agreed in writing by both
parties.
(d) Employee will be paid a fixed annual bonus equal to fifteen percent
(15%) of Employee's Base Compensation, payable in quarterly
installments within 15 days after the end of each fiscal quarter, for
each quarter in which Employee is employed under this Agreement. In
addition, Employee is entitled to an annual discretionary bonus,
payable within 30 days after the end of each Contract Year, of up to
twenty-five percent (25%) of Employee's Base Compensation, based on the
following criteria:
(i) Employee's success in meeting or exceeding Gaming
Operation performance criteria proposed by Employee
prior to the start of each fiscal year of the Gaming
Operation and approved by the Board;
(ii) Employee's success in establishing and implementing
all hiring, training, marketing and compliance
programs and all other programs of the Gaming
Operation with which Employee is charged with
responsibility; and
(iii) Employee's demonstrated leadership skills.
(e) In the event the Authority adopts a deferred compensation/pension
plan, Employee shall be entitled to such benefits, including the right
to have some or all of any bonus placed into such a deferred
compensation plan.
(f) Employee will be entitled, on the same basis as other employees of
the Authority, to participate in and to receive benefits under any of
the Authority's employee benefit plans, if any, as such plans may be
modified from time to time, except that Employee will be entitled to
one week of vacation in excess of the Authority's normal vacation
policy for employees of the Authority.
(g) The Authority will reimburse Employee all reasonable and necessary
business expenses incurred on behalf of his employment during the
performance of his duties under this Agreement, subject to the existing
reimbursement policy established by the Authority. Such reimbursements
shall be supported by adequate record-keeping and other requirements as
may be necessary or appropriate to comply with the Internal Revenue
Code.
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(h) Employee will have the right to be reimbursed for any legal fees
incurred as the result of defending himself in any third party lawsuit
arising out of Employee's obligations under this Agreement; provided
that all such defenses shall be managed and controlled by Authority and
with counsel reasonably approved by Authority. Employee is and will
continue to be covered under the Authority's errors and omissions
insurance as such insurance covers all members of the Board.
6. LICENSING ISSUES. Employee represents to Authority that he is
eligible and suitable for a license and background clearance under the Tribe's
and State's licensing authority. Employee agrees to timely apply for any
license(s) as may be required pursuant to the Compact, the Tribe's gaming
ordinances or otherwise required by law, as may be necessary to enable him to
engage in his employment hereunder. The Authority shall pay all costs associated
with licensing. Employee will maintain such licenses in good standing as a
continuing condition of his employment by Authority.
7. TERMINATION.
(a) Employee may be terminated prior to the Termination Date by
Authority only under the following circumstances:
(i) Upon termination, revocation or disapproval of any license
required by law to be held by Employee to perform as CEO of
the Authority and General Manager of the Gaming Operation or
if any event renders it unlawful for the Tribe and Authority
to continue to conduct casino gaming on the reservation; or
(ii) Employee shall commit an act constituting "Cause", Cause
being defined as (a) an act of intentional dishonesty against
the Authority or the Gaming Operation; (b) conviction of any
criminal charge involving moral turpitude; (c) the deliberate
or intentional refusal by Employee (except by reason of
disability) to perform his duties hereunder; (d) gross
negligence in the performance of his duties hereunder; or, (e)
failure to perform his duties in a manner consistent with his
professional obligations after prior sufficient verbal and
written warnings; or
(iii) Employee shall die; or
(iv) The Authority shall for any reason cease to conduct its
gaming operations; or
(v) Employee shall become unable to perform the duties and
responsibilities set forth in this Agreement by reason of
long-term physical or mental disability, defined as a period
of disability that exceeds six (6) months; or
(vi) Either party shall give the other party hereto ninety
(90) days' written notice of Employee's resignation or
termination.
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(b) If Employee's employment should be terminated under paragraphs 7
(a)(i), (a)(ii) or (a)(vi) above (provided that this subparagraph (b)
shall only apply to paragraph 7 (a)(vi) to the extent that Employee has
resigned), then Authority shall within ten (l0) days of such
termination pay Employee the Base Compensation to the date Employee is
terminated, whereupon Authority shall have no further liability or
obligation to Employee under this Agreement.
(c) If Employee is terminated under paragraphs 7 (a)(iii), (a)(iv),
(a)(v) or (a)(vi) (provided that this subparagraph (c) shall only apply
to paragraph 7 (a)(vi) to the extent that Authority has terminated
Employee), the Authority shall pay to Employee his salary for a period
of three (3) months from the date of termination and he shall be
eligible for all employee benefits during that three-month period,
pro-rated to that period and shall receive as bonus compensation an
amount equal to 25% of the prior year's bonus payable at the end of the
three-month period. Employee shall be paid all amounts due him at the
time of termination when they would otherwise be paid, including the
pro rata share of the bonus for the year in which the termination
occurred.
(d) Upon the payment of all or any part of the compensation provided
for in this paragraph 7, or its mitigation under this paragraph, the
Authority will have no further liability or obligation to Employee
under this Agreement or arising from the employment relationship except
that obligation provided for in this paragraph 7.
(e) Employee will be liable in damages to the Authority for all losses
and expenses incurred by Authority if he terminates his employment for
any reason not authorized herein, with the exception of termination by
written notice agreed to by both parties. Any such unauthorized
termination by Employee will constitute a waiver by Employee of all
claims against the Authority and the Gaming Operation except for Base
Compensation to the date of his termination.
8. CONFIDENTIALITY OF PROPRIETARY INFORMATION. Any information acquired
by Employee while in the employ of the Authority related to employee lists,
patron lists, marketing plans, operating procedures and other information
proprietary to the Authority or the Gaming Operation are acknowledged by
Employee to be confidential information belonging to the Authority, and Employee
shall not disclose such information without the express written authorization of
the Authority except in the ordinary course of the business of the Gaming
Operation . Employee shall, upon termination of this Agreement for any reason
whatsoever, turn over to the Authority any and all copies he may have of
employee lists, patron lists, marketing programs, operating procedures and other
information proprietary to the Authority or the Gaming Operation . Employee
acknowledges that employee lists, patron lists, marketing programs, operating
procedures and other information proprietary to the Authority or the Gaming
Operation are confidential and proprietary information belonging to the
Authority and the Authority may exercise any and all remedies available to it at
law or in equity to enforce this Agreement with respect to non-disclosure of any
such proprietary information to which Employee has or will become privy while an
employee of Authority. Particularly, the parties agree that, because of the
nature of the subject matter of this paragraph 8, in event of a threat or danger
of disclosure of such information, it could be extremely difficult to determine
the actual damages suffered or to be suffered by Authority in the event of a
breach of this Agreement by Employee. Accordingly, Authority shall be entitled
to injunctive relief (both temporary and permanent), it being acknowledged and
agreed that any such actual or threatened breach will cause irreparable injury
to Authority and that money damages alone will not provide an adequate remedy to
Authority. Notwithstanding the foregoing, Authority also shall be entitled to
money damages for any loss suffered or to be suffered as a consequence of
Employee's breach of this Agreement. The parties acknowledge that this provision
shall survive the termination of this Agreement.
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9. ASSIGNMENT. This Agreement may be assigned by the Authority to any
entity formed by the Tribe or the Authority for the express purpose of operating
the Gaming Operation and any related economic development activities. This
Agreement contemplates the personal services of Employee, and neither this
Agreement nor any of the rights herein granted to Employee or the duties assumed
by him hereunder may be assigned by him.
10. MISCELLANEOUS.
(a) Employee represents to Authority that there are no restrictions to
which he is subject or agreements to which he is a party that would be
violated by his execution of this Agreement and his employment
hereunder.
(b) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the Dry Creek Rancheria and
the State of California.
(c) No amendment to this Agreement or any attempted waiver of a
provision of this Agreement shall be effective unless in writing and
signed by the parties to this Agreement.
(d) Any controversy that arises between Employee and the Authority
regarding the rights, duties or liabilities hereunder of either of
them, shall be settled by binding arbitration under the Uniform
Arbitration Act as adopted by the State of California or other forums
for Tribal dispute resolution such as Peace Court or Elder's Counsel,
to the extent only of the enforcement of the arbitration and any
arbitration award as provided for herein. In the case of binding
arbitration, it shall be conducted, upon the request of either party
before three (3) arbitrators (unless the parties agree to one (l)
arbitrator) designated by the American Arbitration Association and in
accordance with the rules of such association, except as such rules may
contemplate state court jurisdiction. The arbitrators designated to act
under this Agreement shall make their award in strict conformity with
such rules and shall have no power to depart from or change any of the
provisions thereof except as provided herein. The Authority on behalf
of itself and the Gaming Operation waives its sovereign immunity from
suit by Employee and hereby consents to be sued in any authorized
Tribal forum, or the Federal District Court for the Northern District
of California and all appellate courts related thereto, or in the event
such courts lack subject matter jurisdiction in the courts of the State
of California and all appellate courts related thereto, for the sole
and limited purpose of enforcing Authority's obligations to Employee
under this Agreement should an action be commenced to compel
arbitration, provide injunctive relief prior to arbitration or enforce
an arbitration award.
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The Parties have executed this Agreement as of the Effective Date hereof.
RIVER ROCK ENTERTAINMENT AUTHORITY
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Its: Tribal Chairperson
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EMPLOYEE
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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