EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of, July 20, 2001,
("Employment Agreement") by and between Xxxxxx Mississippi Gaming, LLC, a
Mississippi limited liability company d/b/a Fitzgeralds Tunica ("the Company")
and Xxxxxxx Xxxxxxxx ("Executive").
RECITALS
A. The Company and the Executive desire to enter into an Employment
Agreement, which supersedes any and all other agreements, either oral
or in writing with respect to the employment of Executive by the
Company.
B. The Company and the Executive desire that the Employment Agreement only
become effective upon the successful completion of the acquisition of
Fitzgeralds Tunica by the Company ("Acquisition Date")
1. Terms
The Company hereby agrees to employ Executive, and Executive hereby
agrees to serve the Company, on the terms and conditions of the
Employment Agreement, for a two year period ("Period of Employment")
commencing on the Acquisition Date (such Period of Employment being
subject to earlier termination as provided herein). Upon the expiration
of the Period of Employment, Executive's employment with the Company
shall cease, unless mutually extended by both parties.
2. Duties and Services
During the period(s) of employment, Executive agrees to serve the
Company as its Vice President and General Manager and in such other
offices and positions of the Company within his areas of expertise and
to perform such other reasonable and appropriate duties consistent with
such position (s) as may be requested of him by the President and Chief
Executive Officer and /or his designee of the Company, in accordance
with the terms herein set forth. Excluding periods of personal time off
to which Executive is entitled, Executive shall devote his full time
energy and skills to the business and affairs of the Company and to the
promotion of its interests. The Executive shall perform all such duties
to the best of his ability and in a diligent manner. Executive may be
reasonably required to travel outside Tunica, Mississippi from time to
time. Executive acknowledges and agrees that this Employment is subject
to the licensing and regulatory control of the Mississippi Gaming
Control Board and various other state, county and city gaming
regulatory enforcement agencies (collectively the "Gaming Authorities")
which may require that Executive be investigated for personal
suitability and licensing. Executive shall fully cooperate with the
Gaming Authorities in order that he may obtain all required licenses,
permits, approvals or findings of suitability required in connection
with his employment hereunder. Company agrees to pay all reasonable
costs associated with licensing of Executive.
3. Compensation
(a) Salary. As compensation for his services hereunder, the Company
shall pay Executive, during the Period of Employment, an annual
salary of Two Hundred Twenty Five Thousand Dollars ($225,000)
less all applicable federal, state and local taxes, social
security and other governmental mandated deductions, which shall
be payable in installments in accordance with the Company's
compensation schedule as in existence from time to time. On the
anniversary of the Acquisition Date, the Executive shall receive
an annual performance review at which time he shall be considered
for a merit increase in his annual salary.
(b) Bonuses. On the anniversary of the Acquisition Date, Executive
shall be entitled to receive a retention bonus of Twenty Thousand
Dollars ($20,000), provided the Executive is then employed by the
Company and in good standing. In addition, Executive shall be
entitled to such bonuses and other benefits as the Company may
periodically award in its sole discretion.
(c) Fringe Benefits. For such period of time as Executive is employed
by the Company during the Period of Employment, Executive shall
receive coverage under the Company's medical insurance program
(as such program is in effect from time to time) on terms no less
favorable than those generally made available to the Company's
executives, shall receive a five hundred dollar ($500) per month
car allowance, and shall receive a five thousand dollar ($5,000)
per annum allowance for unreimbursed medical expanses submitted
in accordance with expense procedures. Nothing contained herein
shall preclude the Executive from participating in any present or
future employee benefit plans of the Company, including without
limitation any 401 (k) plan, profit-sharing plan, savings plan,
deferred compensation plan and health and accident plan or
arrangement, if he meets the eligibility requirements therefor.
(d) Vacation. Executive shall be entitled to maintain his current PTO
schedule to be taken at time or times mutually acceptable to
Executive and the Company, in accordance with the policy in
effect at the time.
(e) Business Expenses. All reasonable travel and other expenses
incident to the rendering of services by Executive hereunder
shall be paid by the Company. If any such expenses are paid in
the first instance by Executive, the Company shall reimburse him
therefor on presentation of appropriate documentation required by
the Internal Revenue Code and Regulations or otherwise required
under the Company policy in connection with such expenses.
4. Early Termination
(a) Notwithstanding the provisions of Section 1 hereof, the Executive
may be terminated by the Company for Cause (as defined herein),
in which event the period of employment hereunder shall cease and
terminate and the Company
shall have no further obligation or duties under this Employment
Agreement, except for obligations accrued under Section 3 as of
the date of termination.
(b) Prior to termination for a performance deficiency as described in
Sections 4(a)(v), (vi), (vii) and (viii), Executive shall be
given notice of deficiency and thirty (30) days within which to
cure the same.
For the purposes of this Employment Agreement ("Cause") shall be deemed
to exist only upon (i) conviction of a felony (ii) embezzlement or
misappropriation of funds or property of the Company or any affiliates;
(iii) failure to obtain and maintain during the period(s) of employment
all licenses, permits, approvals or findings of suitability with Gaming
and other Regulatory Authorities approval or finding of suitability;
(iv) conviction of any criminal or other improper act which could
result in the suspension or revocation of any such license, permit,
approval or finding of suitability; (v) Executive's repeated failure to
comply with any policies or procedures of the Company whether or not
now in effect (vi) upon the material breach by Executive of this
Employment Agreement; (vii) excessive absenteeism in accordance with
Company guidelines on the part of the Executive or (viii) any other
conduct which has or may reasonably be expected to have a material
adverse effect on the Company or the business of the Company.
(c) In addition, the Period of Employment hereunder shall cease and
terminate upon the earliest to occur of the following events: (i)
death of executive, or (ii) the inability of Executive by reason
of physical or mental disability to continue the proper
performance of his duties hereunder for a period of sixty (60)
consecutive days (subject to the requirements of the Americans
with Disabilities Act and Family Medical Leave Act). Upon the
occurrence of these events the Company shall continue to pay to
Executive or his estate, the entire compensation otherwise
payable to him under Section 3(a) hereof for the lesser of sixty
(60) days or the remaining Period of Employment and shall have no
further obligation or duties under this Employment Agreement.
(d) In the event that the Executive is discharged by the Company
other than Cause pursuant to Section 4(a) hereof or is discharged
by reason of physical or mental disability pursuant to Section
4(b) hereof, Executive shall have no further obligations or
duties under this Employment Agreement; provided, however, that
Executive shall continue to be bound by the provisions of Section
5 hereof. However, if Executive should die prior to the end of
such period, the provisions of Section 4(a) hereof shall be
applicable as though the Executive's employment hereunder had not
been terminated.
(e) This Employment Agreement may be terminated by mutual agreement
of the Company and the Executive. The terms and conditions of any
such termination agreement shall be set forth in writing and
signed by both parties.
5.) Confidentiality, Intellectual Property and Non- Competition
(a) The Company and Executive acknowledge that the services to be
performed by Executive under this Employment Agreement are unique
and extraordinary and, as a result of such employment, Executive
will be in possession of confidential information, proprietary
information and trade secrets (collectively, "Confidential
Information") relating to the business practices of the Company
and its affilliates, and that these constitute "Trade Secrets"
under the Mississippi Uniform Trade Secrets Act.
Trade Secrets Act. The Confidential Information referenced herein
includes but is not limited to the following which are or were
developed for the Company by Executive or any other Company employee or
agent; names end addresses of guests; computer programs; software and
disks; business plans; analytical techniques and methodology;
measurement criteria; guest development techniques; market research;
training manuals and video tapes. Executive agrees that he will not
disclose or use the Confidential Information, directly or indirectly
during or after his employment, other than in the performance of his
duties for the Company.
(b) The Company and Executive agree that violation of Executive's
obligations under Section 5(a) of this Employment Agreement shall
constitute "misappropriation" of the Company's trade secrets
under the Mississippi Trade Secrets Act, and the Company's
remedies for any such violation shall be those set out in the
said Act.
(c) Upon termination of his employment with Company for any reason,
Executive shall (i) immediately return to the Company all the
materials delivered to Executive during employment or paid for by
the Company, including but not limited to, originals, duplicates
or copies of keys, tools, telephones, pagers, manuals, plans,
memoranda, reports, systems, procedures, forms, advertising
materials, office supplies, presentations, flow charts,
narratives, organization charts and other employment agreements,
(ii) give to the Company on computer disk and then destroy any
trade secrets in any physical form, including originals,
duplicates, or copies to the Company and (iii) give to the
Company on computer disk and then destroy any trade secrets or
any other Company Information stored in any computer or
electronic device owned or used by Executive.
(d) All programs, ideas, strategies, approaches, practices or
inventions created, developed, obtained or conceived of by
executive during the term hereof by reason of his employment by
the Company, shall be owned and belong exclusively to the
Company, provided that they are related in any manner to business
or that of any of its affiliates. Executive shall (i) promptly
disclose all such programs ideas, strategies, approaches,
practices, inventions or business opportunities to the Company
and (ii) execute and deliver to the Company, without additional
compensation, such instruments as the Company may require from
time to time to evidence its ownership of any such terms.
(e) Executive agrees that during the period of employment, he will
not become a stockholder, director, officer, employee or agent of
or consultant to any corporation, or member of or consultant to
any partnership or other entity, or engage in any business as a
sole proprietor or act as a consultant to any such entity, or
otherwise engage, directly or indirectly, in any enterprise, in
each case which competes with or has a vendor relationship with
any business or activity engaged in, or known by Executive to be
contemplated to be engaged in, by the Company or any of it's
affiliates, provided, however, that competition shall not include
ownership (solely as an investor and without participation in or
contact with the management of the business) of less than one
percent of the outstanding shares of stock of any corporation
engaged in any such business, which shares are regularly traded
on a national securities exchange or in an over-the-counter
market. The Company, in its sole discretion, may waive one or
more of the restrictions set forth in this subsection; however,
any such waiver must be in writing executed by an authorized
Company representative, and shall be effective only to the extent
it is set forth in writing.
(f) Executive agrees that for a period of one (1) year in Tunica
County, Mississippi, should he terminate his employment with the
Company before the end of the two (2) year period "(Employment
Period)" he will not become a stockholder, director, officer,
employee or agent of or consultant to any corporation, or member
of or consultant to any partnership or other entity or engage in
any business as a sole proprietor in or act as a consultant to
any such entity in or otherwise engage, directly or indirectly,
in any enterprise in each case which competes with or has a
vendor relationship with any business or activity engaged in, or
known by Executive to be contemplated to be engaged in, by the
Company or any of its affiliates, provided, however, that
competition shall not include the ownership (solely as an
investor and without any other participation in or contact with
the management of the business) of less than one percent of the
outstanding shares of stock of any corporation engaged in any
such business, which shares are regularly traded on a national
securities exchange or in an over-the-counter market. Should the
Executive and the Company or any of it's affiliates mutually
agree not to renew the Employment Agreement following the initial
two year term of Employment, the Company shall waive the
non-compete agreement as set forth in this subsection. The
Company, in its sole discretion, may waive one or more of the
restrictions set forth in this subsection; however, any such
waiver must be in writing executed by an authorized Company
representative, and shall be effective only to the extent it is
set forth in writing.
(g) Executive further agrees that neither Executive nor any person or
enterprise controlled by Executive will solicit for employment
any person employed by the Company or any of its sister
properties during and within one year following the termination
of Executive's employment.
(h) Unless required by law, Executive shall not disclose the
existence of this Employment Agreement or the terms and
conditions hereof to any other person,
except to Executive's attorneys, accountants and
financial/banking institutions who have a need to know.
(i) The covenants in this Section 5 on the part of the Executive
shall be construed as an agreement independent of any other
provision in this Employment Agreement; and the existence of any
claim or cause of action of Executive against Company, whether
predicated on this Employment Agreement or otherwise, shall not
constitute a defense to the enforcement by Executive of these
covenants. It is agreed by the parties hereto that if any portion
of these covenants against solicitation are held to be
unreasonable, arbitrary or against public policy, the covenants
herein shall be considered divisible both as to time and scope;
and each month of the specified period shall be deemed a separate
period of time, so that the lesser period of time shall remain
effective so long as the same is not unreasonable, arbitrary, or
against public policy. The parties hereto agree that, in the
event any court determines the specified time period to be
reasonable, arbitrary or against public policy, a lesser time
period which is determined to be unreasonable, not arbitrary and
not against public policy may be enforced against Executive. It
is further agreed by the parties hereto that, in the event of a
breach or violation or threatened breach or violation by
Executive of the provisions of this section, the Company shall be
entitled to obtain injunctive relief from a court of competent
jurisdiction restraining the activities set forth herein in
breach or violation of this section (without posting a bond
therefor and upon 24 hours notice to Executive), whether directly
or indirectly. Nothing herein shall be construed as prohibiting
Company from pursuing any other remedies available to it by law
or by this Employment Agreement for breach, violation or
threatened breach or violation of the provisions of this section,
including, by way of illustration and not by way of limitation,
the recovery of damages from Executive or any other person, firm,
corporation or entity. The provisions of this section shall
survive any termination of this Employment Agreement for the
purpose of providing Company with the protection of Covenants of
Executive provided herein. Executive acknowledges that his
capabilities and education are such that enforcement of the
restrictions contained herein shall not prevent him from earning
a livelihood.
6. Representations and Warranties
(a) Executive represents and warrants to Company that his execution,
delivery and performance of this Employment Agreement will not result
in or constitute a breach of or conflict with any term, covenant,
condition, or provision of any commitment, contract, or other agreement
or instrument, including, without limitation, any other employment
agreement, to which Executive is or has been a party.
(b) Executive shall indemnify, defend, and hold harmless Company for, from,
and against any and all losses, claims, suits, damages, expenses, or
liabilities, including court costs and counsel fees, which Company has
incurred or to which Company may become subject, insofar as such
losses, claims, suits, damages, expenses, liabilities, costs, or fees,
arise out of or are based upon any failure of
any representation or warranty of Executive in section 6(a)
hereof to be true and correct when made.
7. Assignment and Change of Control
(a) Executive shall not assign his rights or delegate the performance
of these obligations hereunder without the prior written consent
of the Company. Subject to the provisions of the preceding
sentence, all the terms of this Employment Agreement shall be
binding upon and shall inure to the benefit of the parties and
their legal representatives, heirs, successors and assigns.
(b) Upon a "Change of Control", the Company may assign this Employment
Agreement. For this purpose, a "Change of Control" shall mean a
sale of substantially all of the assets of the Company. Upon the
occurrence of a Change of Control, Company will pay Employee all
payments Company would have been obligated to make pursuant to
Section 3 hereof, based upon a termination date that is six (6)
months after the date on which the period of employment would have
expired but for such termination by reason of a Change of Control.
8. Arbitration
Any dispute which may arise between the parties hereto shall be
submitted to binding arbitration in accordance will the Rules of the
American Arbitration Association; provided that any such dispute shall
first be submitted to the Board of Directors in an effort to resolve
such dispute without resort to arbitration, and provided, further, that
the Board shall have a period of sixty (60) days within which to respond
to the Executive's submitted dispute, and of the Board of Directors
fails to respond within said time, or the Executives dispute is not
resolved, the matter may then be submitted for arbitration.
9. Notice
Any notice or other communication required or permitted to be given
hereunder shall be made in writing and shall be delivered in person or
mailed by prepaid registered or certified mail, return receipt
requested, addressed to the parties as follows:
If to the Company:
Xxxxxx Mississippi Gaming, LLC
C/o Majestic Star Casino
0 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxx 00000-0000
Attention: President and Chief Executive Officer
if to the Executive:
Xxxxxxx X. Xxxxxxxx
0000 Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxx 00000
or to such other addresses as the party shall have furnished in writing
in accordance with this Section. Such notices or communication shall be
effective upon delivery in person, and upon actual receipt or three (3)
days after mailing, whichever is earlier, if delivered by mail.
10. Breach of Agreement
Should the Company be in breach of this Employment Agreement and/or it
be determined that Executive has not been terminated for Cause (the
position first taken by Company for terminating the contract), then
this entire Employment Agreement shall be null and void and of no
further force or effect. Further, Executive shall be entitled to all
benefits and compensation under the Employment Agreement as well as
attorney fees and costs incurred in vindicating himself or establishing
a breach by the Company. Conversely, if the Executive is determined to
be in breach of this Employment Agreement, the Company shall be
entitled to costs and attorney fees in validating that breach.
11. Parties In Interest
The benefits and obligations of this Employment Agreement shall be
binding upon and insure to the benefit of Executive, and it shall be
binding upon and insure to the benefit of the Company, its
subsidiaries and related entities, as well as any corporation
succeeding to all or substantially all of the business assets of the
Company by merger, consolidation, purchase of assets or otherwise.
12. Entire Agreement
This Employment 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 and contains all of the
covenants and agreements between the parties with respect to such
employment in any manner whatsoever. Any modification of this
Employment Agreement will be effective only if it is in writing signed
by the party to be charged.
13. Governing Law and Venue
This Agreement is to be governed by and construed in accordance with
the laws of the State of Mississippi applicable to contracts made and
to be performed wholly within such State, and without regard to the
conflicts of laws principles thereof.
14. Acknowledgement
Executive acknowledges that he has been given a reasonable period of
time to study this Agreement before signing it. Executive certifies
that he has fully read, has received an explanation of, and completely
understands the terms, nature, and effect of this Agreement and to seek
the advice of legal counsel. Executive further acknowledges that he is
executing this Agreement freely, knowingly, and voluntarily and that
Executive's execution of this Agreement is not the result of any fraud,
duress, mistake, or undue influence whatsoever. In executing this
Agreement, Executive does not rely on any inducements, promises, or
representations by Company other then the terms and conditions of this
Agreement.
16. Effective Date
This Employment Agreement shall become effective on the Acquisition
Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first set forth herein above.
COMPANY: EXECUTIVE:
Xxxxxx Mississippi Gaming, LLC
d/b/a/ Fitzgeralds Tunica
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxxxx
--------------------------- ------------------------------
Xxxxxxx X. Xxxxx Xxxxxxx Xxxxxxxx
Chief Operating Officer
