EXHIBIT 10.75
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DATED: October 1, 1999
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EMPLOYMENT AGREEMENT
- by and among -
SANTA FE GAMING CORPORATION
("Employer")
- AND -
XXXXXX X. LAND
("Employee")
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into on
this 30th day of September, 1999, by and among Santa Fe Gaming Corporation, a
Nevada corporation and its affiliates ("Employer"), and Xxxxxx X. Land
("Employee").
W I T N E S S E T H :
WHEREAS, Employer is a corporation duly organized and existing under
the laws of the State of Nevada, maintains its principal place of business at
0000 X. Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, and is engaged in the business
of owning and operating casino/hotel properties in Las Vegas and Laughlin,
Nevada, and proposes to expand its legalized casino gaming business both
within the State of Nevada;
WHEREAS, Employer has entered into an agreement to operate certain
facilities of Santa Fe Gaming Corporation;
WHEREAS, in furtherance of its business, Employer has need of
qualified, experienced personnel;
WHEREAS, Employee is an adult individual presently residing at 0000
Xxxxxxx Xxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000;
WHEREAS, Employee has represented and warranted to Employer that
Employee possesses sufficient qualifications and expertise in order to
fulfill the terms of the employment stated in this Agreement; and
WHEREAS, Employer is willing to employ Employee, and Employee is
desirous of accepting employment from Employer, under the terms and pursuant
to the conditions set forth herein;
WHEREAS, Employer and Employee have previously entered into
Employment Agreements dated February 28, 1994, October 1, 1996, October 1,
1997 and October 1, 1998, and the First Amendment to the Employment Agreement
dated October 1, 1998 ("First Amendment").
WHEREAS, Employer has paid the amount due Employee represented in
the First Amendment and Employer and Employee are desirous of executing this
Agreement.
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
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
hereinafter defined have the respective meanings ascribed to them herein,
unless a different meaning clearly appears from the context:
(a) "Cause" - means
(i) the convictions of Employee by a court of
competent jurisdiction of a felony or any other
offense involving moral turpitude or dishonesty;
(ii) the indictment of Employee by a state or federal
grand jury of competent jurisdiction or the filing of
a criminal competent jurisdiction or the embezzlement
or misappropriation of funds or for any act of
dishonesty or lack of fidelity;
(iii) a decree of a court of competent jurisdiction
that the Employee is not mentally competent or is
unable to handle his own affairs;
(iv) the written confession by Employee of any act of
dishonesty or any embezzlement or misappropriation of
funds;
(v) the payment (or, by the operations solely of the
effect of a deductible, the failure of payment) by a
surety or insurer of a claim under a fidelity bond
issued for the benefit of Employer or Employer's
Affiliates reimbursing Employer or Employer's
Affiliates for a loss due the wrongful act or
wrongful omission to act of Employee;
(vi) Employee's breach of the restrictive covenants
set forth in Paragraphs 10 of this Agreement;
(vii)Employee's failure to secure or 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;
provided, however, that Employee's disability due to
illness or accident or any other mental or physical
incapacity shall not constitute "Cause" as defined
herein;
(viii) Employee's poor work performance resulting in
two consecutive negative written performance
appraisals. Performance appraisals shall occur twice
annually and shall serve as a formal review of the
employee's work performance and contribution to the
company. If on two consecutive performance appraisals
the employee is evaluated poorly, the employer
reserves the right to
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
terminate this agreement. Employee's poor work
performance would include, but not be limited to:
(1) engaging in conduct that is injurious, monetarily
or otherwise, to Employer or Employer's Affiliates;
(2) substantial failure to perform in a professional
manner, or refusal to perform in a professional
manner, any duty or duties assigned by Employer;
(3) substantial failure to adhere, or refusal to
adhere to any policies, rules or procedures of the
Employer; or
(4) engaging in conduct or in past conduct or
affiliations which, in the reasonable opinion of
Employer, would adversely impact Employer's,
Employer's Affiliates' privileged licenses.
(b) "Complete Disability" - means the inability of
Employee, due to 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 or less, 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.
(d) "Employee" - means Employee as earlier defined in this
Agreement.
(e) "Employer" - means Employer as earlier defined in this
Agreement.
(f) "Employer's Affiliates" - means any parent, subsidiary or
affiliated corporation or other legal entity of Employer.
(g) "Prior Employment" - means any prior employment Employee
has had.
2. PRIOR EMPLOYMENT. This Agreement supersedes and replaces
any and all prior employment agreements, whether written or oral, by and
between Employee and Employer, Employer's Affiliates. 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 conditions hereinafter set forth, Employer hereby employs
Employee during the Term hereinafter specified to serve in the position of
Senior Vice-President and Chief Financial Officer of Santa Fe Gaming
Corporation and with such duties not inconsistent
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
with those generally understood within the casino/hotel industry to be those
of a Senior Vice-President and Chief Financial Officer, as the same may be
modified and/or assigned to Employee by Employer. Notwithstanding the
foregoing, Employer and Employee hereby covenant and agree that, in the
absence of mutual consent of both Employer and Employee, Employee shall not
be assigned duties by Employer which would diminish Employee's
responsibility, authority, general status or comparative compensation level
within Employer's table of organization. In addition and the foregoing
notwithstanding, Employee shall devote such time to Employer's Affiliates and
as required by Employer, provided such duties are not inconsistent with
Employee's primary duties to Employer hereunder ("Position").
4. ACCEPTANCE OF EMPLOYMENT. Employee hereby accepts the
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 working time and best efforts solely to the performance of Employee's
duties under this Agreement, and the Employer shall be entitled to all of the
income, benefits, or profits arising from or incident to all work, work
associations, services, or advise of Employee, unless otherwise authorized by
the Employee.
5. TERM. The Term of this Agreement shall consist of a term of
one (1) year commencing as of the Effective Date of this Agreement, unless
sooner terminated as provided below, or as provided in paragraph 6 of this
Agreement. In the event this Agreement is not terminated as provided below,
the Agreement will automatically extend for a one-year period.
(a) the giving of 30-day written notice by Employee to Employer of
the termination of this Agreement.
(b) the giving of 60-day written notice by Employer to Employee not
to renew this Agreement prior to the end of the term. In the event the
Employer gives notice not to renew, notice must be accompanied by Employer's
tender to Employee of (i) the lump sum of payments due to Employee pursuant
to Section 7(a) through the end of the term and (ii) representation from the
Employer satisfactory to Employee, in sole discretion of Employee, that
Employer will provide existing medical and or hospitalization plans for a
period of one year unless and until Employee is covered by subsequent
employment plan.
6. SPECIAL TERMINATION PROVISIONS. Notwithstanding the
provisions of Paragraph 5 of this Agreement, this Agreement shall terminate
upon the occurrence of any of the following events:
(a) the death of Employee;
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
(b) the giving of written notice from Employer to Employee of the
termination of this Agreement upon the Complete Disability of Employee;
however, that upon approval of such an event by the Board of Directors
that the Employer tender to Employee the lump sum of payments due to
Employee for services rendered pursuant to Section 7 and in the case of
Section 7(a) will be equal to one-half the annual Base Salary, in
effect; and representation to provide existing medical and or
hospitalization plans for a period of one year unless covered by
subsequent employment plan.
(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 to Employee of the
termination of this Agreement without Cause; provided, however, that
such notice must be accompanied by Employer's tender to Employee of the
lump sum of payments due to Employee pursuant to Section 7 and in the
case of Section 7(a) will be equal to one-half the annual Base Salary,
in effect; and representation to provide existing medical and or
hospitalization plans for a period of one-year unless covered by
subsequent employment plan.
(e) the giving of written notice by Employee to Employer upon a
material breach of this Agreement by Employer including a change in the
Employee's responsibilities and/or position, provided however, Employer
shall have a period of seven (7) days after giving of such notice to
cure the breach or default; if the default is not cured within such
period, the Employee will be entitled to the lump sum of payments due
to Employee for services rendered pursuant to Section 7 and in the case
of Section 7(a) will be equal to one-half the annual Base Salary, in
effect; and representation to provide existing medical and or
hospitalization plans for a period of one-year unless covered by
subsequent employment plan.
(f) a transfer(including but not limited to either (a) sale of
substantially all of the assets or by sale/issuance of stock) of Santa
Fe Hotel, Inc. ("SFHI") to an entity not beneficially owned by more
than 50% by Xxxx X. Xxxxxx or if Xxxx X. Xxxxxx becomes beneficial
owner of less than 50% of the outstanding common stock of Santa Fe
Gaming; provided, however, that upon approval of a transaction to cause
such an event by the Board of Directors of either SFHI or Santa Fe
Gaming that the Employer tender to Employee the lump sum of payments
due to Employee for services rendered pursuant to Section 7 and in the
case of Section 7(a) will be equal to one-half the annual Base Salary,
in effect; and representation to provide existing medical and or
hospitalization plans for a period of one-year unless covered by
subsequent employment plan. Notwithstanding the provisions of
paragraphs 5 and 6(b)(c)(d)(e), unless this Agreement is terminated
pursuant to paragraph 6f, the terms and conditions of
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
paragraph 6f will continue in full force and effect for a period of one
year from the date written notice is given under paragraphs
5,6(b)(c)(d)(e)
7. COMPENSATION TO EMPLOYEE. For and in complete consideration of
Employee's full and faithful performance of this 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:
(a) Base Salary. Employer hereby covenants and agrees to pay to
Employee, and Employee hereby agrees to accept from Employer, a minimum
annual base salary of ONE HUNDRED EIGHTY-FIVE THOUSAND DOLLARS
($185,000.00), for the twelve month period beginning October 1, 1998,
payable in accordance with the normal payroll practices of the Employer
("the Base Salary"). Such Base Salary shall be exclusive of and in
addition to any other benefits which Employer may make available to
Employee, including, but not limited to, any profit sharing plans,
pension plans, retirement plans, company life insurance plan, medical
and/or hospitalization plans, or any and all other benefit plans which
may be in effect during the Term of this Agreement. Employer shall
deduct from this Base Salary all appropriate or authorized federal
income tax amounts and all other federal, state and local taxes,
including but not limited to existing or future FICA and similar taxes.
(b) Employee Benefit Plans. Employer hereby covenants and agrees that
it shall include Employee, if otherwise eligible, in any profit sharing
plans, bonus participation plans, stock options plans, 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.
(c) Expense Reimbursement. During the Term of this Agreement, Employer
shall either pay directly or reimburse Employee for Employee's
reasonable, necessary and customary 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, professional societies and fraternal organizations,
and the like; provided, however, such reimbursable expenses are
approved by Employer. 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 entitle Employer to a deduction for such services.
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
(d) Licensing Expenses. Employer hereby covenants and agrees that the
Employer shall pay all reasonable and ordinary 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.
(e) Vacations and Holidays. Commencing as of the Effective Date of this
Agreement, Employee shall be entitled to 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.
(f) Transportation Expenses. During the term of this Agreement,
Employer hereby agrees to furnish to Employee for Employee's exclusive
use an automobile. Such automobile shall be either leased or purchased
by Employer and Employer shall pay all insurance, maintenance, and
repair expenses incident to such automobile.
8. LICENSING REQUIREMENTS. Employer and Employee hereby
covenant and agree that, in order for Employee to discharge the duties
required under this Agreement, Employee may be required to submit for
licensure by gaming regulatory authorities. Employer shall pay for all
licensing fees and expenses incurred by Employee, including attorneys' fees
and costs, in securing and maintaining such licenses and permits required of
Employee in order to perform his duties under this Agreement. Such expenses
shall be borne by Employer.
9. CONFIDENTIALITY. Employee hereby warrants, covenants and
agrees that, without the prior express written approval of Employer, during
such time as Employee remains employed by Employer and for a period of 2
years after the termination of this Agreement, Employee shall hold in the
strictest confidence, and shall not disclose to any person, firm, corporation
or other entity, any of Employer's proprietary or confidential data,
including but not limited to (i) information or other documents concerning
Employer's, Employer's Affiliates business, customers or suppliers, (ii)
Employer's, Employer's Affiliates marketing methods, files, and credit and
collection techniques and files, (iii) Employer's, Employer's Affiliates
trade secrets and other "know-how" or information not of public nature,
regardless of how such information came to the custody of 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 except as expressly set
forth herein.
10. RESTRICTIVE COVENANT. Employee hereby covenants and agrees
that, during such time as Employee remains employed by Employer, Employee
shall not directly or indirectly (either as a principal, agent, employee,
employer, consultant,
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
partner, shareholder of a closely held corporation or shareholder in excess
of five per cent (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, Employer's Affiliates, in the state of Nevada. Employee hereby
further covenants and agrees that the restrictive covenant contained in this
Paragraph 10 is reasonable as to duration, terms and geographical area and
that the same protects the legitimate interests of Employer, imposes no undue
hardship on Employee, and is not injurious to the public.
11. BEST EVIDENCE. This Agreement may be executed in original
and "Xerox" or photostatic copies and each copy bearing original signatures
in ink shall be deemed an original.
12. SUCCESSION. This Agreement shall be binding upon and inure
to the benefit of Employer and Employee and their respective successors and
assigns.
13. ASSIGNMENT. The rights, benefits and obligations of
Employee under this Agreement shall not be assignable. Any purported
assignment in violation of this Paragraph 14 shall be null and void and of no
force and effect.
14. AMENDMENT OR MODIFICATION. This Agreement may not be
amended, modified, changed or altered except by a writing signed by both
Employer and Employee.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Nevada in effect on the
Effective Date of this Agreement without resort to any conflict of laws
principles, and the parties hereto specifically agree and consent that courts
of the state of Nevada shall have sole and exclusive jurisdiction over any
matter brought under, or by reason of, this Agreement.
16. NOTICES. Any and all notices required under this Agreement
shall be in writing and shall be either hand-delivered or mailed, certified
mail, return receipt requested, addressed to:
TO EMPLOYER: Santa Fe Gaming Corporation
0000 X. Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, President
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
With copy to: Xxxxxxx Xxxxxx
XXXXX XXXXXX
000 Xxxx Xxxxxxx Xxxxxx
XX Xxx 000
Xxxx, XX 00000-0000
TO EMPLOYEE: Xxxxxx X. Land
0000 Xxxxxxx Xxxx Xxxxxx
Xxx Xxxxx, XX 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. Any changes in any of the addresses
listed herein shall be amended by notice as provided in this Paragraph 17.
17. INTERPRETATION. The preamble recitals to this Agreement are
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.
18. SEVERABILITY. In the event any one or more provisions of
this Agreement is declared judicially void or otherwise unenforceable, the
remainder of this Agreement shall survive and such provision(s) shall be
deemed modified or amended so as to fulfill the intent of the parties hereto.
19. DISPUTE RESOLUTION. Except for equitable actions seeking to
enforce the provisions of Paragraphs 9 and 10 of this Agreement which may be
brought by the Employer or Employer's Affiliates in any court of competent
jurisdiction in the state of Nevada, 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 Las Vegas, Nevada, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. This
agreement to arbitrate shall be specifically enforceable in any state of
federal court of competent jurisdiction in the state of Nevada.
20. WAIVER. None of the terms of this Agreement, including this
Paragraph 20, 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.
21. PAROL. This Agreement constitutes the entire agreement
between Employer and Employee with respect to the subject matter hereto and
this Agreement
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
supersedes any prior understandings, agreements or undertakings by and
between Employer and Employee with respect to the subject matter hereof.
22. GENERAL PROVISIONS.
(a) Time is of the essence.
(b) This Agreement has been carefully and fully examined by
Employee and Employee represents that the legal and factual
contents hereof are fully appreciated and comprehended by
Employee. Further, Employee has had ample opportunity to
review this Agreement with legal and/or such other counsel as
deemed appropriate, if any. Employee has decided to execute
this Agreement having considered the various advantages and
possible detriments associated therewith. Although this
Agreement has been prepared by Employer, it is the product of
discussions and negotiations and should be construed fairly
accordingly to its terms and not against one party as the
drafter thereof.
(c) In the event an action is filed in relation to this
Agreement, the unsuccessful party in the action shall pay to
the successful party, in addition to all sums that the party
may be order to pay, a reasonable sum for the successful
party's attorney fees.
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.
EMPLOYER
Santa Fe Gaming Corporation, a
Nevada Corporation
By:
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Xxxx X. Xxxxxx
President
EMPLOYEE
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Xxxxxx X. Land
Senior Vice President and
Chief Financial Officer
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
