RESIGNATION AGREEMENT
THIS AGREEMENT made and entered on to this 21st day of July, 2005, by and
between the following parties:
A. Xxxxxxx X. Xxxxxx, hereinafter referred to as "Employee".
B. The Inn of the Mountain Gods Resort and Casino, an enterprise of
the Mescalero Apache Tribe, hereinafter referred to as
"Employer".
WITNESSETH
WHEREAS, Employee has been an employee of Employer pursuant to an Executive
Employment Agreement dated November 12, 2002 and as amended December 5, 2003 as
the Chief Operations Officer;
WHEREAS, Employee wishes to submit his resignation as an Employee;
WHEREAS, Employer and Employee wish to enter into a resignation agreement
setting forth the understanding of each party.
NOW, THEREFORE, in consideration of the mutual promises, the covenants and
obligations contained herein, Employer and Employee agree as follows:
1. Employee shall submit his resignation effective the 22nd day of July,
2005 as an Employee of Employer.
2. All future compensation to which Employee is entitled and all future
benefits for which the Employee is eligible shall cease and terminate
as of the date set forth in paragraph 1 above, except for those as
specifically negotiated between Employer and Employee and set forth in
paragraph 6 below.
3. The employment of Employee has been pursuant to the Executive
Employment Agreement dated November 12, 2002 and amended December 5,
2003.
4. As of the date of this resignation, Employee shall receive prorated
salary through said date.
5. Employee shall not be entitled to any individual bonuses or individual
incentive compensation not yet paid as of the date of such
resignation.
6. Employee shall receive the following:
A. A lump sum payment in the amount of his current salary, housing
allowance and automobile allowance for a period of twelve (12)
months payable after the effective date of his termination. Such
lump sum payment shall be reduced by normal deductions. Employee
shall not be
1
under any duty or obligation to accept or seek employment after
this resignation.
B. Medical, dental and vision benefits for employee and his
immediate family for a period through and including July 31,
2006.
7. Employee's rights as a former employee after the effective date of
this resignation are those as set forth in the preceding paragraph and
are the sole and exclusive rights available to the Employee. Employee
covenants not to xxx or lodge any claim, demand or cause of action
against Employer for any other sums other than those amounts to be
paid under paragraph 6 above.
8. In consideration of the resignation package as set forth in paragraph
6 above, Employee agrees to the following:
A. Employee shall not disclose to any third party or entity
information received by Employee as an employee of Employer which
shall include, but not be limited to, information relating to
corporate opportunities, research, financial and sales data,
pricing and trading terms, evaluations, opinions,
interpretations, acquisition prospects, business development, the
identity of customers, the identity of key contracts within the
organization acquisition prospects, marketing and merchandising
techniques, prospective names, marks, ideas, future concepts or
improvements, with Employee recognizing that same are the sole
and exclusive property of Employer. Moreover, Employee shall not
disclose any drawings, memoranda, notes, records, files,
correspondence, manuals, models, specifications, computer
programs, and all other writings or materials of any type
embodying any of such information, ideas, concepts and
improvements, recognizing that same are the sole and exclusive
property of Employer.
B. As part of the consideration for the resignation package as set
forth in paragraph 6 above, Employee hereunder agrees that during
a period of twenty four (24) months from the date of this
resignation, within a one hundred (100) mile radius of the
exterior boundaries of the Mescalero Apache Reservation, Employee
will not directly or indirectly for Employee or for others do any
of the following:
i. Operate any business competitive with the business conducted
by Employer;
ii. Render advice or services to or otherwise assist any other
person, association, or entity who is engaged directly or
indirectly in any gaming or gaming-related business
competitive with the business conducted by Employer. This
exclusion shall not apply to Employee's provision of
consulting services to Ruidoso Downs, Ruidoso Downs, New
Mexico; or
2
iii. Induce any employee of Employer, its enterprises and other
entities to terminate his or her employment with Employer,
the enterprises of Employer and other entities or hire or
assist in the hiring of any such employee by a person,
association or entity not affiliated with Employer.
9. Employee further agrees that Employee will be available upon
reasonable notice for appearing in legal matters involving Centex
Construction or other legal matters that may have arisen during the
period of time that the Employee was the Chief Operations Officer of
Employer. Employer is to make request of Employee for such services,
and such services shall be at the sole expense of Employer including
transportation and time compensation. For a period of one (1) year,
the compensation paid hereunder shall be considered adequate time
compensation for such services by Employee.
10. Employer and Employee agree that, to the extent permitted by law or
applicable regulation, each shall maintain the confidentiality of this
Agreement. Neither Party shall disclose the material contents of this
Agreement to any third party without the prior written consent of the
other. Upon receipt of a validly issued subpoena requiring the
disclosure of either this Agreement or the material terms thereof, the
Party receiving such subpoena shall immediately disclose to the other
Party the receipt of such subpoena.
11. Employer and Employee agree that neither shall, after the resignation
of Employee, publishing any oral or written statements about the other
party that are slanderous, libelous, or defamatory. Further, Employee
shall not place the Employer, its officers, employees, agents or
representatives in a false light before the public; Employee shall not
misappropriate or use the name or likenesses of the Employer, its
enterprises and other entities, or any of such entities' officers,
employees, agents or representatives.
12. Employee understands that the restrictions as set forth in paragraphs
8 and 9 above may limit his ability to engage in certain businesses
during the time and within the geographic area as referred to above,
but acknowledges that Employee is receiving sufficient remuneration
and benefits under his resignation package to justify such
restriction. Employee further acknowledges that money damages would
not be a sufficient remedy for any breach of paragraphs 8 and 9 above
by Employee and Employer shall be entitled to enforce provisions of
paragraphs 8 and 9 above by secure specific performance and injunctive
relief as remedies for such breach or threatened breach. Such remedies
shall not be deemed the exclusive remedies for a breach of paragraphs
8 and 9 above, but shall be in addition to all remedies available at
law or in equity to Employer including, without limitation, the
recovery of damages from Employee and his agents involved in such
breach.
13. In turn, Employer upon a request for prior employment information on
Employee will agree to provide the following to any prospective
Employer (provided such
3
employment request is not in violation of the terms and provisions of
this agreement), stating as follows:
A. Period of time Employee was employed by Employer (or predecessors
in interest of Employer).
B. Positions held by Employee.
C. Last rate of pay.
Employer shall further provide to Employee a letter of reference.
Employer and Employee state that they have agreed to the language of
such letter and same has been executed contemporaneous with the
execution of this agreement.
14. This agreement shall be governed in all respects by the laws of the
Mescalero Apache Tribe.
15. The parties hereto are citizens of the United States. The Employer has
employed Employee within the exterior boundaries of the Mescalero
Apache Reservation and such employment of Employee has been within the
exterior boundaries of the Mescalero Apache Reservation. Jurisdiction
and venue for purposes of enforcement, damages or interpretation of
any and all terms and provisions of this agreement shall be the
Mescalero Apache Tribal Court.
16. Should it be necessary for additional documents to be executed herein,
the parties shall execute same.
Inn of the Mountain Gods Resort
and Casino:
By: /s/ Xxxx X. Chino /s/ Xxxxxxx X. Xxxxxx
------------------------------------ -----------------------------
Xxxx X. Chino Xxxxxxx X. Xxxxxx
Chairman and Chief Executive
Officer
"Employer" "Employee"
4
