EMPLOYMENT AGREEMENT
Exhibit
10.34
THIS
EMPLOYMENT AGREEMENT
("Agreement"),
which
expressly includes and references non-competition, non-solicitation and
confidentiality provisions, is made and entered into this 1st day of
January, 2005, by and between Isle of Capri Casinos, Inc., a Delaware
corporation and its subsidiary and affiliated companies hereinafter referred to
individually and collectively as (the "Company") and Xxxxxx Xxxxxxx
("Employee").
WHEREAS,
the Company desires to employ Employee, and Employee desires to perform services
for, and be employed by, the Company.
WHEREAS,
as a condition of Employee’s employment, the Company desires to receive from
Employee covenants including, but not limited to, the following: (a) to refrain
from carrying on or engaging in a business similar to that of the Company; (b)
to refrain from soliciting Employees of the Company for employment elsewhere;
and (c) to protect and maintain the confidentiality of the Company’s trade
secrets and any proprietary information.
WHEREAS,
the Company and Employee desire to set forth in writing the terms and conditions
of their agreements and understandings with respect to Employee’s employment at
Company, as well as these covenants, and the parties expressly acknowledge that
these covenants are a condition of Employee’s employment.
NOW,
THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth in this Agreement, the Company and Employee agree as
follows:
1. Effective
Date. This
Agreement shall be effective as of the date hereof and replaces the employment
agreement currently in place between the “Company” and the
“Employee.”
2. Employment.
(a) Term. The
Company hereby employs Employee, and Employee accepts such employment and agrees
to perform services for the Company for an initial period of one (1) year from
and after the Effective Date of this Agreement (the "Initial Term") and for
successive one-year periods (the "Renewal Terms"), unless terminated at an
earlier date in accordance with Section 3 of this Agreement (the Initial Term
and the Renewal Terms together referred to as the "Term of Employment").
(b) Service
with Company. During
the Term of Employment, Employee agrees to perform reasonable employment duties
as the Board of Directors of the Company shall assign to him from time to time.
Employee also agrees to serve, for any period for which he is elected as an
officer of the Company; provided, however, that Employee shall not be entitled
to
any
additional compensation for serving as an officer of the Company. From and after
the Effective Date, Employee shall continue to be an executive officer of the
Company with the title of Senior Vice President, Operations.
(c) Performance
of Duties.
Employee agrees to serve the Company faithfully and to the best of his ability
and to devote substantially all of his time, attention and efforts to the
business and affairs of the Company during the Term of Employment.
(d) Compensation.
During the Term of Employment, the Company shall pay to Employee as compensation
for services to be rendered hereunder an aggregate base salary of $260,000 per
year, payable in equal monthly, or more frequent payments, subject to increases,
if any, as may be determined by the Company. Employee shall also be eligible to
participate in any stock option plans of the Company. In addition to the base
salary, any bonuses, and participation in stock option plans, Employee shall be
eligible to participate in any Employee benefit plans or programs of the Company
as are or may be made generally available to Employees of the Company and those
made available to officers of the Company. The Company will pay or reimburse
Employee for all reasonable and necessary out-of-pocket expenses incurred by him
in the performance of his duties under this Agreement, subject to the
presentment of appropriate vouchers in accordance with the Company's policies
for expense verification.
3. Termination.
(a) The Term
of Employment shall terminate prior to its expiration in the event that at any
time during such term:
|
(i) |
The
Company delivers a notice of termination for “cause to Employee”. For
purposes of this section, "cause" shall mean any dishonesty, disloyalty,
material breach of corporate policies, gross misconduct on the part of
Employee in the performance of Employee's duties hereunder or a violation
of Section 5 of this agreement. If Employee is terminated for cause, there
shall be no severance paid to Employee and his benefits shall terminate,
except as may be provided by law. |
| (ii) |
The
Company for any other reason terminates the Term of Employment,
without
cause. If Employee signs a General Release in a form acceptable to the
Company that releases the Company from any and all claims that Employee
may have and affirmatively agrees not to violate any of the provisions of
Section 5 hereof, Employee shall be entitled to continue to receive his
salary and, to the extent legally permissible continue to participate in
the Employee benefit programs for a period of 12 months from and after
such termination or until new employment begins, which ever occurs first.
If Employee fails to sign the form, Employee shall not be entitled to any
continuing payments or benefits. In lieu of monthly payments, a lump sum
award may be authorized by the Board of Directors. Employee shall be
provided out-placement service with an out-placement firm or service
selected by the Company and at the reasonable expense of the Company.
|
| (iii) |
Employee
for any reason voluntarily terminates the Term of Employment. In said
event, Employee shall not be entitled to any compensation and his benefits
shall terminate, except as may be provided by law, from and after
termination. |
| (iv) |
However,
if Employee voluntarily terminates the Term of Employment due to
Retirement all stock options shall become fully vested and exercisable and
the Employee’s deferred bonus payments shall be fully vested and paid. The
term “Retirement” shall mean the termination by Employee of his employment
by reason of reaching the age of 65 or such later date approved by the
Board of Directors. |
|
(v) |
Employee
dies or becomes disabled as determined in good faith by the Board of
Directors. Employee, or his estate, shall continue to receive his salary
and, to the extent legally permissible continue to participate in the
Employee benefit programs for a period of 12 months from and after such
termination or until new employment begins, which ever occurs first. In
lieu of monthly payments, a lump sum award may be authorized by the Board
of Directors. Employee shall also be entitled to a lump sum payment equal
to the average of the last 3 years bonus payment inclusive of deferred
amounts. |
(b) Except as
provided above, the vesting of stock options and deferred bonus payments shall
be governed by the provisions of the Company’s Stock Option Plans and Deferred
Bonus Plan.
4. Change
In Control of the Company. A
change in control of the Company defined as its sale, acquisition, merger or
buyout to an unaffiliated person that has significant effect or a reduction in
the responsibilities, position or compensation of Employee or if Employee is
required to move the location of his principal residence a distance of more than
35 miles prior to or during the initial 12 months of the change of control will
entitle Employee to the following severance:
|
(i) |
18
month's salary paid as salary continuation plus a lump sum payment equal
to the average of the previous 3 years bonus payment inclusive of deferred
amounts. Salary continuation shall terminate if and when Employee begins
new employment during the period of salary continuation.
|
| (ii) |
Health
and welfare benefits shall be fully paid by the Company and run
concurrently with salary continuation. |
| (iii) |
All
stock options shall become fully vested and exercisable and Employee’s
deferred bonus payments shall be fully vested and
paid. |
|
(iv) |
Employee
shall be provided out-placement services with a mutually agreed upon
out-placement firm or service selected by the Company and at the
reasonable expense of the Company. |
5. Confidentiality,
Non-competition
and Non-Solicitation.
(a) The
Company’s Business. It is
expressly agreed by the parties that the Company is engaged in the business of
owning, managing and operating gaming and casino facilities in the States of
Mississippi, Louisiana, Iowa, Missouri, Colorado, Florida, the Bahamas, and the
United Kingdom, and is engaged in all aspects of such gaming and casino
operations. Employee desires to be employed by the Company and acknowledges and
agrees that the Company would be adversely affected if Employee engaged in any
form of competition with the Company during, and subsequent to, Employee’s
employment with the Company.
(b) Trade
Secrets and Confidential Information. The
Company and Employee acknowledge the existence of trade secrets and other
confidential information as defined below (collectively referred to as
“Confidential Information”), all of which are owned by the Company, regardless
of whether such Confidential Information was conceived, originated, devised,
supplemented, discovered or developed by Employee, the Company, or any other
person or entity. Employee acknowledges that he will have access to Confidential
Information during his employment with the Company.
Except as
required by law, during the term of this Agreement and thereafter, Employee
shall not, without the prior written consent of the Company, directly or
indirectly use, disclose or disseminate to any other person, firm or
organization, or otherwise use any Confidential Information other than on behalf
of the Company. The foregoing obligation shall not apply to any Confidential
Information that shall have become generally known to competitors of the Company
or to the public other than through an act or omission by Employee or that shall
have been disclosed to the Employee by a person or entity unaffiliated with the
Company who has legitimate possession thereof in its
entirety and possesses the unrestricted right to make such disclosure. Employee
agrees to indemnify, defend and hold harmless the Company from and against any
damages (including attorneys’ fees, court costs, investigative costs and amounts
paid in settlement) suffered by the Company or any of its Affiliates arising out
of the unauthorized disclosure or use of Confidential Information by Employee.
“Confidential
Information” shall mean any data or information and documentation, whether in
tangible form, electronic form or verbally disclosed, that is valuable to the
Company and not generally known to the public. To the fullest extent consistent
with the foregoing and as otherwise lawful, Confidential Information shall
include, without limitation, the Company’s trade secrets, computer programs,
sales techniques and reports, formulas, data processes, methods, articles of
manufacture, machines, apparatus, designs, compositions of matter, products,
ideas, improvements, inventions, discoveries, developmental or experimental
work, corporate strategy, marketing techniques, pricing lists and data and other
pricing information, business plans, ideas and opportunities, accounting and
financial information including financial statements and projections, personnel
records, specialized customer information, supplier information, special
products and services the Company may offer or provide to its customers/guests
from time to time, pending acquisitions, negotiations and transactions, or the
terms of existing proposed business arrangements. Confidential Information shall
also include all customer lists, accounts and specifications, and contacts of
the Company, and shall further include work in progress, plans or any other
matter belonging to or relating to the technical or business activities of the
Company.
Employee, at the time of the effective date of the termination of the employment
relationship with the Company, shall turn over to the Company all “Confidential
Information” and any and all copies thereof in his possession regardless of who
provided Employee with such information. Should Employee be legally served with
a lawfully issued subpoena expressly directing Employee to turn over the
Company’s Confidential Information, Employee shall immediately, and certainly no
later than two (2) days after notice, advise the Company in writing of the
subpoena and also provide a copy of the subpoena to the Company, at its lawful
address as stated in this Agreement, thereby providing
the Company with adequate time to lawfully object to the disclosure of its
Confidential Information. Employee’s failure to immediately advise the Company
of the subpoena shall subject Employee to any and all remedies afforded to the
Company, including, but not limited to damages resulting to the Company for
breach of contract.
Employee
agrees that all such Confidential Information is, and shall remain, the sole and
exclusive property of the Company and Employee further agrees that during and
after the term of his employment with the Company, Employee will not publish,
disclose, communicate or otherwise disseminate to any entity and/or person any
Confidential Information. Employee acknowledges and agrees that such
Confidential Information is of critical importance to the Company and its
business, and any unauthorized dissemination of such information would cause
great harm to the Company, thereby entitling the Company to any and all rights
and remedies as provided by law, and as specifically provided in Section 6 of
this Agreement.
Employee
hereby assigns and agrees to assign to the Company any invention, improvement,
or discovery made by him, alone or jointly with others, during the term of his
employment, including any period of authorized leave of absence, or as a result
of his employment, and which in any way relates to, or may be useful in, the
business of the Company, together with each patent that may be obtained thereon
in any country. Employee will promptly
and
fully disclose to the Company any such invention, improvement or discovery and,
without further consideration, will upon request by the Company execute all
proper papers for use in applying for, obtaining and maintaining any United
States or foreign patent and all proper assignments thereof, at the Company's
expense and through its Patent Counsel. Each such invention, improvement or
discovery, whether or not patented, shall be the exclusive property of the
Company.
(c)
Restrictions
on Competition. In
exchange for consideration of employment, and as a condition of employment of
Employee by the Company, during the term of Employee’s employment with the
Company, and for a period of one (1) year after the voluntary or involuntary
termination of Employee’s employment with the Company for any reason whatsoever,
Employee will (a) refrain from carrying on or engaging in a business similar to
that of the Company (as defined in Section 5(a)); (b) refrain from soliciting
Employees of the Company, and (c) protect and maintain the confidentiality of
trade secrets and any and all confidential and proprietary information.
Provisions (a) through (c) of this section apply in the geographic areas where
the Company does business, including additional areas where the Company may
expand its business while Employee is employed by the Company.
(d)
Non-solicitation
of Employees.
Employee shall not, without the prior written consent of the Company, either
directly or indirectly, either individually or jointly or on behalf of or in
concert with any other person, as a proprietor, partner, shareholder, investor,
lender, financial backer, director, officer, employee, agent, advisor,
consultant or manager, or in any other capacity or manner whatsoever, solicit,
hire or attempt to hire, enter into any contract or other arrangement with, or
interfere with, disrupt or attempt to interfere with or disrupt the Company's
relationships with any person, who, as of the date of termination of Employee’s
employment, is employed by the Company.
(e) Reasonable
Terms.
Employee
agrees that the geographic areas, duration and scope of activities outlined in
this Agreement are reasonable under the circumstances. Employee further agrees
that such terms are no broader than necessary to protect the Company’s business
and maintain the confidentiality of the Confidential Information. Employee
further agrees that the terms of this Agreement are not oppressive and will not
impose an unreasonable burden or restraint on Employee.
6. Miscellaneous.
(a) Successors
and Assigns. This
Agreement is binding on and inures to the benefit of the Company's successors
and assigns. The Company may assign this Agreement in connection with a merger,
consolidation, assignment, sale or other disposition of substantially all of its
assets or business. This
Agreement may not be assigned by Employee.
(b) Modification,
Waivers. This
Agreement may be modified or amended only by a writing signed by an authorized
representative of the Company, and Employee. The Company's failure, or delay in
exercising any right, or partial exercise of any
right,
will not waive any provision of this Agreement or preclude the Company from
otherwise or further exercising any rights or remedies hereunder, or any other
rights or remedies granted by any law or any related document.
(c) Arbitration. Except
for an action seeking Remedies as defined below, which may be brought in any
court of competent jurisdiction, any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by binding
arbitration administered by the American Arbitration Association under its
Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Both the
Company and Employee hereby consent to this binding arbitration provision.
(d) Remedies.
Employee expressly acknowledges and the parties recognize that the restrictions
contained herein are reasonable and necessary to protect the business and
interests of the Company, and that any violation of these restrictions will
cause substantial irreparable injury and damage to the Company, and the extent
of such damage would be difficult if not impossible to calculate. Accordingly,
the parties to this Agreement expressly agree that (i) if Employee breaches any
provision of this Agreement, the damage to the Company may be substantial,
although difficult to ascertain, and monetary damages may not afford an adequate
remedy, and (ii) if Employee is in breach of any provision of this Agreement, or
threatens a breach of this Agreement, the Company shall be entitled, in addition
to all other rights and remedies as may be provided by law, to seek specific
performance and injunctive and other equitable relief, including, but not
limited to, restraining orders and preliminary and permanent injunctions, to
enforce the provisions of this Agreement, particularly those provisions
governing noncompetition, nonsolicitation and confidentiality, contained in this
Agreement, as well as to prevent or restrain a breach of any provisions of this
Agreement. The parties expressly agree that the Company has these specific and
express rights to injunctive relief without posting any bond that might be
requested or required, and without the necessity of proving irreparable injury,
and that Employee expressly agrees not to claim in any such equitable
proceedings that a remedy at law is available to the Company. The existence of
any claim or cause of action by Employee, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Company
or any of its Affiliates of any provision hereof. The parties to this Agreement
also expressly agree that the Company is entitled to recover any and all damages
for any losses sustained, and rights of which it has been deprived, as well as
any damages allowed by law.
If any
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach or default in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties shall be entitled
to recover reasonable attorney’s fees and other costs incurred in that
proceeding, in addition to any other relief to which it may be entitled. All of
the Company’s remedies for breach of this Agreement shall be cumulative and the
pursuit of one remedy shall not be deemed to exclude any other
remedies.
(e) Captions. The
headings in this Agreement are for convenience only and do not affect the
interpretation of this Agreement.
(f) Severability. To the
extent any provision of this Agreement shall be invalid or enforceable with
respect to Employee, it shall be considered deleted herefrom with respect to
Employee and the remainder of such provision and this Agreement shall be
unaffected and shall continue in full force and effect. In furtherance to and
not in limitation of the foregoing, should the duration or geographical extent
of, or business activities covered by, any provision of this Agreement be in
excess of that which is valid and enforceable under applicable law with respect
to Employee, then such provision shall be construed to cover only that duration,
extent or activities which are validly and enforceably covered with respect to
Employee. Employee acknowledges the uncertainty of the law in this respect and
expressly stipulates that this Agreement be given the construction which renders
its provisions valid and enforceable to the maximum extent (not exceeding its
expressed terms) possible under applicable laws.
(g) Entire
Agreement. This
Agreement contains the entire agreement and understanding by and between the
Company and Employee, and supersedes all previous and contemporaneous oral
negotiations, commitments, writings and understandings between the parties
concerning the matters herein or therein, including without limitation, any
policy of personnel manuals of the Company to the extent any provisions herein
are inconsistent therewith. No change to this Agreement shall be valid or
binding unless it is in writing and signed by the parties.
(h) Notices. All
notices and other communications required or permitted under this Agreement
shall be in writing and sent by registered first-class mail, postage prepaid,
and shall be deemed delivered upon hand delivery or upon mailing (postage
prepaid and by registered or certified mail) to the following
address:
If to the
Company, to:
Isle of
Capri Casinos, Inc.
0000
Xxxxx Xxxxx Xxxx
Xxxxxx,
XX 00000
If to the
Employee, to:
Xxxxxx X.
Xxxxxxx
000 Xxxx
Xxxx Xxx
Xxxxxx,
XX 00000
These
addresses may be changed at any time by like notice.
(i) Choice
of Law. The
interpretation and enforceability of this Agreement shall be governed by the
laws of the State of Mississippi without regard to the location of execution or
performance.
(j) Independent
Review and Advice. Employee
represents and warrants that Employee has carefully read this Agreement; that
Employee executes this Agreement with full knowledge of the contents of this
Agreement, the legal consequences thereof, and any and all rights which each
party may have with respect to each other; that Employee has had the opportunity
to receive independent legal advice with respect to the matters set forth in
this Agreement and with respect to the rights and asserted rights arising out of
such matters, and that Employee is entering into this Agreement of the
Employee’s own free will. Employee expressly agrees that there are no
expectations contrary to the Agreement and no usage of trade or regular practice
in the industry shall be used to modify the Agreement.
IN
WITNESS WHEREOF, each party has caused this Agreement to be executed in a manner
appropriate for such party as of the date first above written.
ISLE
OF CAPRI CASINOS, INC.
By:_/s/
Xxxxxxx X. Hinkley________________
"EMPLOYEE"
/s/
Xxxxxx X. Griffin_____________________
