EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A," is entered into between the Mescalero Apache Tribe, a federally-recognized
Indian tribe, having offices at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000
("Employer"), and Xxxxxxx X. Xxxxxxxx, an individual currently residing at [ ],
California ("Employee"), to be effective as of September 22, 2003 (the
"Effective Date").
WITNESSETH
WHEREAS, Employer desires to employ Employee in the position set forth on
Exhibit "A" and under the terms and conditions set forth in this Employment
Agreement.
WHEREAS, Employee is willing to accept employment with Employer under the
terms and conditions set forth in this Employment Agreement; and
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
and obligations contained herein, Employer and Employee agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be employed
by Employer, beginning as of the Effective Date and continuing until the date
set forth on Exhibit "A" (the "Term"), subject to the terms and conditions of
this Agreement.
1.2 Employee initially shall be employed in the position set forth on
Exhibit "A." Employer may subsequently assign Employee to a different position
or modify Employee's duties and responsibilities; provided however, in the event
Employer substantially reduces the duties or responsibilities of Employee,
Employee may elect to terminate this Agreement under Section 3.2 (ii) and said
termination shall constitute an Involuntary Termination for purposes of Section
3.5. Employee agrees to serve in the assigned position and to perform diligently
and to the best of Employee's abilities the duties and services appertaining to
such position as determined by Employer, as well as such additional or different
duties and services appropriate to such position which Employee from time to
time may be reasonably directed to perform by Employer. Employee shall at all
times comply with and be subject to such policies and procedures as Employer may
establish from time to time.
1.3 Employee shall, during the period of Employee's employment by Employer,
devote Employee's full business time, energy, and best efforts to the business
and affairs of Employer and its Enterprises or other entities. Employee may not
engage, directly or indirectly, in any other business, investment, or activity
that interferes with Employee's performance of Employee's duties hereunder, is
contrary to the interests of Employer, or requires any significant portion of
Employee's business time.
1.4 In connection with Employee's employment by Employer, Employer shall
endeavor to provide Employee access to such information pertaining to the
business and services of Employer as is appropriate for Employee's employment
responsibilities. Employer also shall endeavor to provide to Employee the
opportunity to develop business relationships with those of
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Employer's clients and potential clients that are appropriate for Employee's
employment responsibilities.
1.5 Employee acknowledges and agrees that at all times during the
employment relationship Employee owes fiduciary duties to Employer, including
but not limited to the fiduciary duties of the highest loyalty, fidelity and
allegiance to act at all times in the best interests of the Employer, to make
full disclosure to Employer of all information that pertains to Employer's
business and interests, to do no act which would injure Employer's business, its
interests, or its reputation, and to refrain from using for Employee's own
benefit or for the benefit of others any information or opportunities pertaining
to Employer's business or interests that are entrusted to Employee or that
Employee learned while employed by Employer. Employee acknowledges and agrees
that upon termination of the employment relationship, Employee shall continue to
refrain from using for Employee's own benefit or the benefit of others any
information or opportunities pertaining to Employer's business or interests that
were entrusted to Employee during the employment relationship or that Employee
learned while employed by Employer. Employee agrees that while employed by
Employer and thereafter Employee shall not knowingly take any action that
interferes with the internal relationships between Employer and its employees or
representatives or interferes with the external relationships between Employer
and third parties.
1.6 It is agreed that any direct or indirect interest in, connection with,
or benefit from any outside activities, particularly commercial activities,
which interest might in any way adversely affect Employer or any of its
Enterprises or other entities, involves a possible conflict of interest. In
keeping with Employee's fiduciary duties to Employer, Employee agrees that
during the employment relationship Employee shall not knowingly become involved
in a conflict of interest with Employer or its affiliates, or upon discovery
thereof, allow such a conflict to continue. Moreover, Employee agrees that
Employee shall disclose to Employer's President any facts that might involve
such a conflict of interest that has not been approved by Employer's President.
Employer and Employee recognize that it is impossible to provide an exhaustive
list of actions or interests that constitute a "conflict of interest." Moreover,
Employer and Employee recognize there are many borderline situations. In some
instances, full disclosure of facts by the Employee to Employer's President may
be all that is necessary to enable Employer or its affiliates to protect its
interests. In others, if no improper motivation appears to exist and the
interests of Employer or its affiliates have not suffered, prompt elimination of
the outside interest will suffice. In still others, it may be necessary for
Employer to terminate the employment relationship. Employer and Employee agree
that Employer's determination as to whether a conflict of interest exists shall
be conclusive. Employer reserves the fight to take such action as, in its
judgment, will end the conflict.
1.7 Employee understands and acknowledges that the terms and conditions of
this Agreement constitute confidential information. Employee shall keep
confidential the terms of this Agreement and shall not disclose this
confidential information to anyone other than as required by law. Employee
acknowledges and understands that disclosure of the terms of this Agreement
constitutes a material breach of this Agreement and could subject Employee to
disciplinary action, including without limitation, termination of employment.
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ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee's monthly base salary during the Term shall be not less than
the amount set forth under the heading "Monthly Base Salary" on Exhibit "A,"
subject to increase at the sole discretion of the Employer, provided however,
that Employee shall receive an annual cost of living increase based on the
percentage specified by Employer for all of Employer's employees or a mutually
agreeable federal governmental index, which shall be paid in accordance with
Employer's standard payroll practice. Any calculation to be made under this
Agreement with respect to Employee's Monthly Base Salary shall be made using the
then current Monthly Base Salary in effect at the time of the event for which
such calculation is made.
2.2 While employed by Employer, Employee shall be allowed to participate,
on the same basis generally as other employees of Employer, in all general
employee benefit plans and programs, including improvements or modifications of
the same, which on the effective date or thereafter are made available by
Employer to all or substantially all of Employer's employees. Such benefits,
plans, and programs may include, without limitation, paid vacation, paid sick
leave, paid holidays, and medical, health, and dental care, life insurance,
disability protection, and pension plans. Nothing in this Agreement is to be
construed or interpreted to provide greater rights, participation, coverage, or
benefits under such benefit plans or programs than provided to similarly
situated employees pursuant to the terms and conditions of such benefit plans
and programs.
2.3 While employed by Employer, Employee shall be entitled to reimbursement
for all reasonable expenses, including travel and entertainment, incurred by
Employee in the performance of Employee's duties. Employee will maintain records
and written receipts as required by the Employer's policy and reasonably
requested by the Employer to substantiate such expenses.
2.4 Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing, any
such incentive compensation or employee benefit program or plan, so long as such
actions are similarly applicable to covered employees generally. Moreover,
unless specifically provided for in a written plan document adopted by the
Mescalero Apache Tribal Council, none of the benefits or arrangements described
in this Article 2 shall be secured or funded in any way, and each shall instead
constitute an unfunded and unsecured promise to pay money in the future
exclusively from the general assets of Employer.
2.5 Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH
TERMINATION:
3.1 Notwithstanding any other provisions of this Agreement, Employer shall
have the right to terminate Employee's employment under this Agreement at any
time prior to the expiration of the Term for any of the following reasons:
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(i) For "cause" upon the determination by the Employer's President that
"cause" exists for the termination of the employment relationship. As
used in this Section 3.1 (i), the term "cause" shall mean [a]
Employee's gross negligence or willful misconduct in the performance
of the duties and services required of Employee pursuant to this
Agreement; [b] Employee has been convicted of a felony; [c] Employee
has willfully refused without proper legal reason to perform the
duties and responsibilities required of Employee under this Agreement
which remains uncorrected for thirty (30) days following written
notice to Employee by Employer of such breach; [d] Employee's
involvement in a conflict of interest as referenced in Section 1.6 for
which Employer makes a determination to terminate the employment of
Employee which remains uncorrected for thirty (30) days following
written notice to Employee by Employer of such breach; [e] Employee
has willfully engaged in conduct that Employee knows or should know is
materially injurious to Employer or any of its respective Enterprises
or other entities; [f] Employee's material breach of any material
provision of this Agreement or Tribal policy which remains uncorrected
for thirty (30) days following written notice to Employee by Employer
of such breach; [g] Employee violates the Indian Gaming Regulatory Act
or other applicable United States law as proscribed by Section 5.1; or
[h] Employee no longer has a valid Mescalero Apache Tribal Gaming
Commission Gaming License. It is expressly acknowledged and agreed
that the decision as to whether "cause" exists for termination of the
employment relationship by Employer is delegated to the Employer's
President for determination. If Employee disagrees with the decision
reached by Employer's President, the dispute will be limited to
whether Employer's President reached the decision in good faith;
(ii) for any other reason whatsoever, with or without cause, in the sole
discretion of the President of Employer;
(iii) upon Employee's death; or
(iv) upon Employee's becoming disabled so as the Employee is permanently
and totally unable to perform Employee's duties for Employer as a
result of any medically determinable physical or mental impairment as
supported by a written medical opinion to the foregoing effect by a
physician selected by Employer.
The termination of Employee's employment by Employer prior to the expiration of
the Term shall constitute a "Termination for Cause" if made pursuant to Section
3.1 (i); the effect of such termination is specified in Section 3.4. The
termination of Employee's employment by Employer prior to the expiration of the
Term shall constitute an "Involuntary Termination" if made pursuant to Section
3.1 (ii); the effect of such termination is specified in Section 3.5. The effect
of the employment relationship being terminated pursuant to Section 3.1 (iii) as
a result of Employee's death is specified in Section 3.6. The effect of the
employment relationship being terminated pursuant to Section 3.1 (iv) as a
result of the Employee becoming incapacitated is specified in Section 3.7.
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3.2 Notwithstanding any other provisions of this Agreement except Section
8.6, Employee shall have the right to terminate the employment relationship
under this Agreement at any time prior to the expiration of the Term of
employment for any of the following reasons:
(i) a material breach by Employer of any material provision of this
Agreement which remains uncorrected for thirty (30) days following
written notice of such breach by Employee to Employer; or
(ii) for any other reason whatsoever, in the sole discretion of Employee.
The termination of Employee's employment by Employee prior to the expiration of
the Term shall constitute an "Involuntary Termination" if made pursuant to
Section 3.2 (i); the effect of such termination is specified in Section 3.5. The
termination of Employee's employment by Employee prior to the expiration of the
Term shall constitute a "Voluntary Termination" if made pursuant to Section 3.2
(ii); the effect of such termination is specified in Section 3.3.
3.3 Upon a "Voluntary Termination" of the employment relationship by
Employee prior to expiration of the Term, all future compensation to which
Employee is entitled and all future benefits for which Employee is eligible
shall cease and terminate as of the date of termination. Employee shall be
entitled to pro rata salary through the date of such termination, but Employee
shall not be entitled to any individual bonuses or individual incentive
compensation not yet paid at the date of such termination.
3.4 If Employee's employment hereunder shall be terminated by Employer for
Cause as defined in paragraph 3.1 prior to expiration of the Term, all future
compensation to which Employee is entitled and all future benefits for which
Employee is eligible shall cease and terminate as of the date of termination.
Employee shall be entitled to pro rata salary through the date of such
termination, but Employee shall not be entitled to any individual bonuses or
individual incentive compensation not yet paid at the date of such termination.
3.5 Upon an Involuntary Termination of the employment relationship by
either Employer or Employee prior to the expiration of the Term, Employee shall
be entitled, in consideration of Employee's continuing obligations hereunder
after such termination (including, without limitation, Employee's
non-competition obligations), to receive the then current Monthly Base Salary,
benefits and allowance continuation as set forth in Exhibit "A" for a period of
six months or until employee has secured employment with another employer.
Employee shall not be under any duty or obligation to seek or accept other
employment following Involuntary Termination and the amounts due Employee
hereunder shall not be reduced or suspended if Employee accepts subsequent
employment. Employee's rights under this Section 3.5 are Employee's sole and
exclusive rights against Employer, its Enterprises or their entities of the
Employer, and Employer's sole and exclusive liability to Employee under this
Agreement, in contract, tort, or otherwise, for any Involuntary Termination of
the employment relationship. Employee covenants not to xxx or lodge any claim,
demand or cause of action against Employer for any sums for Involuntary
Termination other than those sums specified in this Section 3.5. If Employee
breaches this covenant, Employer shall be entitled to recover from Employee all
sums expended by Employer (including costs and attorneys fees) in connection
with such suit, claim, demand or cause of action.
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3.6 Upon termination of the employment relationship as a result of
Employee's death, Employee's heirs, administrators, or legatees shall be
entitled to Employee's pro rata salary through the date of such termination, but
Employee's heirs, administrators, or legatees shall not be entitled to any
individual bonuses or individual incentive compensation not yet paid to Employee
at the date of such termination.
3.7 Upon termination of the employment relationship as a result of
Employee's incapacity, Employee shall be entitled to his or her pro rata salary
through the date of such termination, but Employee shall not be entitled to any
individual bonuses or individual incentive compensation not yet paid to Employee
at the date of such termination.
3.8 Notwithstanding any provision herein to the contrary, upon a
termination of Employee's employment under any of the circumstances described in
Sections 3.5, 3.6 or 3.7 above, Employee shall be entitled to receive a pro-rata
annual bonus payment through the date of such termination of employment.
3.9 In all cases, the compensation and benefits payable to Employee under
this Agreement upon termination of the employment relationship shall be offset
against any amounts to which Employee may otherwise be entitled under any and
all severance plans, and policies of Employer.
3.10 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement that are continuing obligations,
including, without limitation, Employee's obligations under Articles 6 and 7.
3.11 This Agreement governs the rights and obligations of Employer and
Employee with respect to Employee's salary, bonuses, and other perquisites of
employment.
ARTICLE 4: CONTINUATION OF EMPLOYMENT BEYOND TERM; TERMINATION AND EFFECTS OF
TERMINATION:
4.1 Should Employee remain employed by Employer beyond the expiration of
the Term specified on Exhibit "A," such employment shall convert to a
month-to-month relationship terminable at any time by either Employer or
Employee for any reason whatsoever, with or without cause. Upon such termination
of the employment relationship by either Employer or Employee for any reason
whatsoever, all future compensation to which Employee is entitled and all future
benefits for which Employee is eligible shall cease and terminate. Employee
shall be entitled to pro rata salary through the date of such termination, but
Employee shall not be entitled to any individual bonuses or individual incentive
compensation not yet paid at the date of such termination.
ARTICLE 5: MESCALERO APACHE TRIBE LAWS, MESCALERO APACHE TRIBAL GAMING
COMMISSION REGULATIONS AND UNITED STATES INDIAN GAMING REGULATORY ACT
AND OTHER LAWS:
5.1 Employee shall at all times comply with applicable Mescalero Apache
Tribal laws, Mescalero Apache Tribal Gaming Commission regulations and United
States laws applicable to Employee's actions on behalf of Employer, including
specifically, without
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limitation, the Tribal Gaming Ordinance and the United States Indian Gaming
Regulatory Act, generally codified in 25 USC 2701 ("IGRA"), as the IGRA may
hereafter be amended, and/or its successor statutes. If Employee pleads guilty
to or nolo contendere or admits civil or criminal liability under the IGRA or
other applicable United States law, or if a court finds that Employee has
personal civil or criminal liability under the IGRA or other applicable United
States law, or if a court finds that Employee committed an action resulting in
any Mescalero Apache Tribal Resort Enterprise or other Tribal Enterprise or
entity having civil or criminal liability or responsibility under the IGRA or
other applicable United States law with knowledge of the activities giving rise
to such liability or knowledge of facts from which Employee should have
reasonably inferred the activities giving rise to liability had occurred or were
likely to occur, such action or finding shall constitute "cause" for termination
under this Agreement unless Employer's highest applicable level of Employer's
management determines that the actions found to be in violation of the IGRA or
other applicable United States law were taken in good faith and in compliance
with all applicable policies of Employer.
ARTICLE 6: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
6.1 All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer (whether during business hours or otherwise
and whether on Employer's premises or otherwise) which relate to Employer's
business, products or services (including, without limitation, all such
information relating to corporate opportunities, research, financial and sales
data, pricing and trading terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within the customer's organizations or within the
organization of acquisition prospects, or marketing and merchandising
techniques, prospective names, and marks) shall be disclosed to Employer and are
and shall be the sole and exclusive property of Employer. Moreover, all
drawings, memoranda, notes, records, files, correspondence, drawings, manuals,
models, specifications, computer programs, maps and all other writings or
materials of any type embodying any of such information, ideas, concepts,
improvements, discoveries, and inventions are and shall be the sole and
exclusive property of Employer.
6.2 Employee acknowledges that the business of Employer, its Enterprises
and other entities is highly competitive and that their strategies, methods,
books, records, and documents, their technical information concerning their
products, equipment, services, and processes, procurement procedures and pricing
techniques, the names of and other information (such as credit and financial
data) concerning their customers and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer, its Enterprises and other entities use in
their business to obtain a competitive advantage over their competitors.
Employee further acknowledges that protection of such confidential business
information and trade secrets against unauthorized disclosure and use is of
critical importance to Employer, its Enterprises and other entities in
maintaining their competitive position. Employee hereby agrees that Employee
will not, at any time during or after his or her employment by Employer, make
any unauthorized disclosure of any confidential business information or trade
secrets of Employer, its Enterprises and other entities, or make any use
thereof, except in the carrying out of his or her employment responsibilities
hereunder.
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Employer its Enterprises and other entities shall be third party beneficiaries
of Employee's obligations under this Section. As a result of Employee's
employment by Employer, Employee may also from time to time have access to, or
knowledge of, confidential business information or trade secrets of third
parties, such as customers, suppliers, partners, joint venturers, and the like,
of Employer, its Enterprises and other entities. Employee also agrees to
preserve and protect the confidentiality of such third party confidential
information and trade secrets to the same extent, and on the same basis, as
Employer's confidential business information and trade secrets. Employee
acknowledges that money damages would not be sufficient remedy for any breach of
this Article 6 by Employee, and Employer shall be entitled to enforce the
provisions of this Article 6 by terminating any payments then owing to Employee
under this Agreement and/or to specific performance and injunctive relief as
remedies for such breach or any threatened breach. Such remedies shall not be
deemed the exclusive remedies for a breach of this Article 6, but shall be in
addition to all remedies available at law or in equity to Employer, including
the recovery of damages from Employee and his or her agents involved in such
breach.
6.3 All written materials, records, and other documents made by, or coming
into the possession of, Employee during the period of Employee's employment by
Employer which contain or disclose confidential business information or trade
secrets of Employer, its Enterprises and other entities shall be and remain the
property of Employer, its Enterprises and other entities, as the case may be.
Upon termination of Employee's employment by Employer, for any reason, Employee
promptly shall deliver the same, and all copies thereof, to Employer.
6.4 If, during Employee's employment by Employer, Employee creates any
original work of authorship fixed in any tangible medium of expression which is
the subject matter of copyright (such as videotapes, written presentations on
acquisitions, computer programs, drawings, maps, architectural renditions,
models, manuals, brochures, or the like) relating to Employer's business,
products, or services, whether such work is created solely by Employee or
jointly with others (whether during business hours or otherwise and whether on
Employer's premises or otherwise), Employee shall disclose such work to
Employer. Employer shall be deemed the author of such work if the work is
prepared by Employee in the scope of his or her employment; or, if the work is
not prepared by Employee within the scope of his or her employment but is
specially ordered by Employer as a contribution to a collective work, as a part
of a motion picture or other audiovisual work, as a translation, as a
supplementary work, as a compilation, or as an instructional text, then the work
shall be considered to be work made for hire and Employer shall be the author of
the work. If such work is neither prepared by the Employee within the scope of
his or her employment nor a work specially ordered and is deemed to be a work
made for hire, then Employee hereby agrees to assign, and by these presents does
assign, to Employer all of Employee's worldwide right, title, and interest in
and to such work and all rights of copyright therein.
6.5 During the period of Employee's employment by Employer and thereafter,
Employee shall assist Employer and its nominee, at any time, in the protection
of Employer's worldwide right, title, and interest in and to information, ideas,
concepts, improvements, discoveries, and inventions, and its copyrighted works,
including without limitation, the execution of all formal assignment documents
requested by Employer or its nominee and the execution of all lawful oaths and
applications for applications for patents and registration of copyright in the
United States and foreign countries.
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ARTICLE 7: POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
7.1 As part of the consideration for the compensation and benefits to be
paid to Employee hereunder, in keeping with Employee's duties as a fiduciary and
in order to protect Employer's interests in the confidential information of
Employer and the business relationships developed by Employee with the clients
and potential clients of Employer, and as an additional incentive for Employer
to enter into this Agreement, Employer and Employee agree to the non-competition
provisions of this Article 7. Employee agrees that during the period of
Employee's non-competition obligations hereunder, Employee will not, directly or
indirectly for Employee or for others, in any geographic area or market where
Employer, its Enterprises and other entities are conducting any business as of
the date of termination of the employment relationship or have during the
previous twelve months conducted any business:
(i) engage in 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 business competitive with the business
conducted by Employer;
(iii) induce any employee of Employer, its Enterprises and other
entities to terminate his or her employment with Employer, its
Enterprises and other entities, or hire or assist in the hiring
of any such employee by person, association, or entity not
affiliated with Employer.
These non-competition obligations shall extend until December 31, 2006.
7.2 Employee understands that the foregoing restrictions may limit his or
her ability to engage in certain businesses anywhere in the world during the
period provided for above, but acknowledges that Employee will receive
sufficiently high remuneration and other benefits (e.g., the right to receive
compensation under Section 3.5 upon Involuntary Termination) under this
Agreement to justify such restriction. Employee acknowledges that money damages
would not be sufficient remedy for any breach of this Article 7 by Employee, and
Employer shall be entitled to enforce the provisions of this Article 7 by
terminating any payments then owing to Employee under this Agreement and/or to
specific performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive remedies for
a breach of this Article 7, 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 or her agents involved in such breach.
7.3 It is expressly understood and agreed that Employer and Employee
consider the restrictions contained in this Article 7 to be reasonable and
necessary to protect the proprietary information of Employer. Nevertheless, if
any of the aforesaid restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be
modified by such courts so as to be reasonable and enforceable and, as so
modified by the court, to be fully enforced.
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ARTICLE 8: MISCELLANEOUS:
8.1 For purposes of this Agreement the terms "Enterprise" or "entities"
means an entity who directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with the Mescalero Apache
Tribe.
8.2 Employee shall refrain, both during the employment relationship and
after the employment relationship terminates, from publishing any oral or
written statements about Employer, its Enterprises and other entities, or any of
such entities' officers, employees, agents or representatives that are
slanderous, libelous, or defamatory; or that disclose private or confidential
information about Employer, its Enterprises and other entities, or any of such
entities' business affairs, officers, employees, agents, or representatives; or
that constitute an intrusion into the seclusion or private lives of Employer,
its Enterprises and other entities, or such entities' officers, employees,
agents, or representatives; or that give rise to unreasonable publicity about
the private lives of Employer, its Enterprises and other entities, or any of
such entities' officers, employees, agents, or representatives; or that place
Employer, its Enterprises and other entities, or any of such entities' or its
officers, employees, agents, or representatives in a false light before the
public; or that constitute a misappropriation of the name or likeness of
Employer, its Enterprises and other entities, or any of such entities' or its
officers, employees, agents, or representatives. A violation or threatened
violation of this prohibition may be enjoined by the courts. The rights afforded
the Mescalero Apache Tribal entities under this provision are in addition to any
and all rights and remedies otherwise afforded by law.
8.3 For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Employer:
Mescalero Apache Tribe and Xxxxxxx, Xxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx First Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Office of the Tribal President Attention: Xxxxxxx Xxxxxxx
If to Employee, to the address shown on the first page hereof.
Either Employer or Employee may furnish a change of address to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
8.4 This Agreement shall be governed in all respects by the laws of the
Mescalero Apache Tribe, excluding any conflict-of-law rule or principle that
might refer the construction of the Agreement to the federal courts of the
United States.
8.5 No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or
provision of this Agreement shall
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be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
8.6 If a dispute arises out of or related to this Agreement, other than a
dispute regarding Employee's obligations under Article 6, or Article 7, and if
the dispute cannot be settled through direct discussions, then Employer and
Employee agree to first endeavor to settle the dispute in an amicable manner by
mediation, before having recourse to any other proceeding or forum. To
facilitate this process, the Employer hereby waives any right it may have to
require the Employee to exhaust any tribal administrative or judicial remedies.
Any dispute arising hereunder, which is not otherwise resolved by the
preceding Paragraph, shall be resolved by binding arbitration under the
provisions established by the American Arbitration Association.
Arbitration under this authority shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association, except that the
arbitrators shall be attorneys who are licensed members in good standing of the
State Bar of New Mexico or of the State Bar of another state. The Employer will
select one arbitrator, the Employee a second arbitrator, and the two so chosen
shall select a third arbitrator. If the third arbitrator is not chosen in this
manner within ten (10) days after the second arbitrator is selected, the third
arbitrator will be chosen in accordance with the rules of the American
Arbitration Association.
All parties shall bear their own costs of arbitration and attorney fees,
provided however, that the prevailing party shall be entitled to recover from
the offending party the costs of arbitration and attorney fees related to the
issue in dispute for which arbitration was invoked.
The results of arbitration shall be enforceable by an action for injunctive
or mandatory injunctive relief against the Employer and the Employee in any
court of competent jurisdiction. For purposes of any such action, the Employer
acknowledges that any action or failure to act on the part of any agent or
employee of the Employer, contrary to a decision of the arbitrators in an
arbitration proceeding conducted under the provisions of this section, occurring
after such decision, shall be wholly unauthorized and ultra xxxxx acts, not
protected by the sovereign immunity of the Employer.
8.7 Each of Employer and Employee is a citizen of the United States of
America. Employer's principal place of business is in Mescalero, Xxxxx County,
New Mexico. This Agreement was negotiated and signed in Mescalero, New Mexico.
This Agreement shall be performed in Mescalero, New Mexico. Any litigation that
may be brought by either Employer or Employee involving the enforcement of this
Agreement or the rights, duties, or obligations of this Agreement, shall be
brought exclusively in the Tribal court sitting in Mescalero, Xxxxx County, New
Mexico, or federal courts having jurisdiction over the Mescalero Apache Tribe.
8.8 It is a desire and intent of the parties that the terms, provisions,
covenants, and remedies contained in this Agreement shall be enforceable to the
fullest extent permitted by law. If any such term, provision, covenant, or
remedy of this Agreement or the application thereof to any person, association,
or entity or circumstances shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant, or
remedy shall be
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construed in a manner so as to permit its enforceability under the applicable
law to the fullest extent permitted by law. In any case, the remaining
provisions of this Agreement or the application thereof to any person,
association, or entity or circumstances other than those to which they have been
held invalid or unenforceable, shall remain in full force and effect.
8.9 This Agreement shall be binding upon and inure to the benefit of
Employer and any other person, association, or entity which may hereafter
acquire or succeed to all or substantially all of the business or assets of
Employer by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under Agreement
hereof are personal and such rights, benefits, and obligations of Employee shall
not be voluntarily or involuntarily assigned, alienated, or transferred, whether
by operation of law or otherwise, without the prior written consent of Employer.
8.10 There may exist other agreements between Employer and Employee
relating to the employment relationship between them, e.g., the agreement with
respect to company policies contained in Employer's Policy booklet and
agreements with respect to benefit plans and health insurance. This Agreement
replaces and merges previous agreements and discussions pertaining to the
following subject matters covered herein: the nature of Employee's employment
relationship with Employer and the term and termination of such relationship.
This Agreement constitutes the entire agreement of the parties with regard to
such subject matters, and contains all of the covenants, promises,
representations, warranties, and agreements between the parties with respect
such subject matters. Each party to this Agreement acknowledges that no
representation, inducement, promise, or agreement, oral or written, has been
made by either party with respect to such subject matters, which is not embodied
herein, and that no agreement, statement, or promise relating to the employment
of Employee by Employer that is not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it is
in writing and signed by each party whose rights hereunder are affected thereby,
provided that any such modification must be authorized or approved by Employer's
President.
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
in multiple originals to be effective on the date first stated above.
MESCALERO APACHE TRIBE XXXXXXX X. XXXXXXXX
/s/ Xxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- --------------------------------
By: Xxxx Xxxxxxx, President By: Xxxxxxx X. Xxxxxxxx
This 22 day of September 2003
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EXHIBIT "A"
EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN THE
MESCALERO APACHE TRIBE
AND XXXXXXX X. XXXXXXXX
EMPLOYEE NAME: Xxxxxxx X. Xxxxxxxx
TERM: Effective September 22, 2003 through April 30, 2006
POSITION: Chief Financial Officer - Inn of the Mountain Gods Resort
and Casino
LOCATION: Inn of the Mountain Gods Resort and Casino, Mescalero,
New Mexico
REPORTING RELATIONSHIP: As designated by Tribal President
MONTHLY BASE SALARY: Sixteen thousand six hundred sixty six and 67/100 Dollars
($16,666.67)
BONUS: An annual incentive salary equal to one-quarter of one
percent (.25%) of the adjusted net profits (hereinafter
defined) of the Employer's Resort operations, herein
defined as the Inn of the Mountain Gods Resort and
Casino, Inn of the Mountain Gods, Casino Apache, Casino
Apache Travel Center and Ski Apache Enterprises,
beginning with the Employer's year end for Fiscal year
2004 and each fiscal year thereafter during the term of
this Agreement. "Adjusted net profit" shall be the net
income of the Employer's Resort operations before any
distributions to the Mescalero Apache Tribe or any
Enterprise or other entity of the Mescalero Apache Tribe;
before any reserve, accrual or payment of any revenue
sharing, regulatory fees or other reserve, accrual or
payments to the State of New Mexico; before any interest
expense related to any financing costs connected with the
construction and equipping of the Inn of the Mountain
Gods Resort and Casino; and before any reserve for
capital improvements, determined in accordance with
generally accepted accounting practices by the Employer's
independent accounting firm and adjusted to exclude:
(i) any incentive salary payments paid
pursuant to this Agreement; (ii) any
1
extraordinary gains or losses
(including, but not limited to, gains
or losses on disposition of assets);
(iii) any refund or deficiency of any
regulatory or related fees paid in a
prior year; and (iv) any provision for
regulatory or related fees made in
prior years which is subsequently
determined to be unnecessary.
The determination of the adjusted net
profits made by the independent accounting
firm employed by the Employer shall be
final and binding upon Employee and
Employer.
The annual incentive salary
payment shall be made within thirty (30)
days after the calendar year end for the
fiscal year last ended, and shall be based
on audited results from that last fiscal
year then ended. The maximum incentive
salary payable for any one year shall not
exceed fifty percent (50%) of the then
applicable base salary of Employee.
Notwithstanding the foregoing, the annual
incentive salary payment shall be not less
than twenty five thousand and 00/100
dollars ($25,000.00). Employer and
Employee agree to negotiate Employee's
bonus opportunity for each subsequent
fiscal year no later than October 1 of
each applicable fiscal year.
Employee shall also be entitled to a one-time
employment incentive payment in the amount
of fifty thousand and 00/100 dollars
($50,000.00), payable within ten (10) days
of the execution of this Agreement. Half
of the employment incentive payment will
be credited against the first annual
incentive salary payment.
HOUSING ALLOWANCE: Employer will provide to Employee a monthly housing
allowance of two thousand and 00/100 dollars ($2,000) per
month.
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EMPLOYEE BENEFITS: Employee, spouse and eligible dependents will be eligible
for immediate coverage or medical, dental and vision
benefits to the extent permitted by the Plan Document.
MESCALERO APACHE TRIBE XXXXXXX X. XXXXXXXX
/s/ Xxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- --------------------------------
By: Xxxx Xxxxxxx, President By: Xxxxxxx X. Xxxxxxxx
This 22 day of September 2003
