EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”),
which expressly includes and references non-competition, non-solicitation and
confidentiality provisions, is signed this 3rd day of December, 2007 (the
“Agreement Date”), 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 Xxxx Xxxxx
(“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. Employment
Date.
This
Agreement shall be effective upon the Employee’s commencement of providing
services for the Company (the “Employment Date”), which shall be on or before
December 17, 2007. The Employment Date shall be evidenced by a written
acknowledgement of the date of the Employment Date.
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 Employment Date (the “Initial Term”) and for successive one-year
periods (the “Renewal Term(s)”), unless either: (i) the Company provides 90 days
written notice prior to the expiration of the Initial Term or applicable Renewal
Term, or (ii) the Agreement is terminated at an earlier date in accordance
with
Section 3 or Section 4 of this Agreement (the Initial Term and the Renewal
Terms
together referred to as the “Term of Employment”).
(b) Service
with Company.
From
and after the Employment Date during the term of this Agreement, Employee shall
serve as the Company’s Chief Financial Officer. 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, with such duties
and responsibilities as are customarily the duties and responsibilities of
the
Chief Financial Officer of companies such as the Company. 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.
1
(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 business time, attention and efforts
to
the business and affairs of the Company during the Term of Employment. The
foregoing shall not preclude Employee from serving on charitable boards and
engaging in other civic endeavors, so long as the same do not interfere with
the
performance of his duties.
(d) Compensation.
From
and after the Employment Date and during the remaining Term of Employment,
the
Company shall pay to Employee as compensation for services to be rendered
hereunder an aggregate base salary of $400,000.00 per year payable in equal
monthly, or more frequent, payments, subject to increases, if any, as may be
determined by the Company (“Annual Base Salary”). Employee shall also be
eligible to receive an annual cash bonus beginning with respect to the Company’s
2008 fiscal year (prorated based on days of employment) based upon the
achievement of objective performance targets that have been established by
the
Compensation Committee of the Board of Directors (the “Committee”), provided
that the Employee’s minimum annual bonus for each year shall be equal to at
least 60% of the Employee’s Annual Base Salary if the Employee meets the minimum
targets set by the Committee. With respect to fiscal years subsequent to the
2008 fiscal year, Employee shall be involved as a senior management executive
in
the establishment of objective performance targets. On the Agreement Date,
the
Employee shall receive a nonqualified option to purchase 125,000 shares of
Company stock, subject to the terms of the Isle of Capri Casinos, Inc. 2000
Long-Term Stock Incentive Plan and the terms set forth in this Agreement, 20%
of
which options shall vest on each of the first five (5) anniversaries of the
Agreement Date; provided, however, that in no event shall any of such options
vest in the event that the Employment Date does not occur for any reason, and
in
such instance such options shall be forfeited. The exercise price of such
options shall be $17.10 per share, representing the average between the high
and
low trading prices of the Company’s common stock on the date hereof. The
Employee shall also be entitled to participate in the Isle of Capri Casinos,
Inc. 2000 Long-Term Stock Incentive Plan and other stock option plans, if any,
established by the Company (the “Company’s Stock Option Plans”), to the extent
that similarly situated executives of the Company participate in such plans.
In
addition to the base salary, any bonuses, and participation in the Company’s
Stock Option Plans as set forth above, Employee shall be entitled 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 (it being understood that Employee shall first be
eligible for the grant of additional stock options at the 2008 annual meeting
of
the Board of Directors). Employee shall be entitled to three weeks’ vacation per
year. 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.
(e) No
Violation.
Employee represents and warrants to the Company that the execution and delivery
of this Agreement by Employee, and the carrying out of Employee’s duties on
behalf of the Company as contemplated hereby, do not violate or conflict with
the terms of any other agreements to which the Employee is or was a
party.
2
(f) Relocation
Expense Reimbursement.
The
Company agrees to directly pay, or reimburse Employee for, all reasonable fees,
costs and expenses incurred in connection with his relocation from New Jersey
to
Missouri in a manner consistent with Company policies for senior,
executive-level employees of the Company.
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 or
breach of corporate policies, in each case that is material to the
ability
of Employee to continue to function as an effective executive given
the
strict regulatory standards of the industry in which the Company
does
business; gross misconduct on the part of Employee in the performance
of
Employee’s duties hereunder; a violation of Section 5 of this Agreement;
or the failure to be licensed as a “key person” or similar role under the
laws of any jurisdiction were the Company does business, or the loss
of
any such license for any reason. If Employee is terminated for cause
(after the Company has given him 10 days’ advance written notice in the
case of instances giving rise to the Company’s ability to terminate
Employee’s employment for “cause” that are capable of being cured during
such time period), 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” as defined in this Section (including through non-renewal of the
Agreement). For purposes of this Section, if Employee signs a Mutual
and
General Release in reasonable and typical form that is acceptable
to the
Company that releases the Company from any and all claims that Employee
may have (and vice versa) and affirmatively agrees not to violate
any of
the provisions of Section 5 hereof (which shall not be expanded beyond
what is set forth in Section 5), Employee shall be entitled to receive
the
severance payments and continued benefits described in this paragraph
3(a)(ii); but if Employee fails to sign the form, Employee shall
not be
entitled to any continuing payments or benefits hereunder. Subject
to the
foregoing, if the Company terminates the Term of Employment without
“cause,” then the Employee shall be entitled to continue to receive his
Annual Base Salary (and shall receive any earned but unpaid portion
of his
bonus) payable in 12 monthly installments beginning on the first
day
following the six-month anniversary of the Employee’s termination date
and, to the extent legally permissible, Employee shall be entitled
to
continue to participate in the employee
|
3
|
benefit
programs for a period of 12 months from and after the Employee’s
termination date; provided, however, that the salary continuation
payments
and such continued coverage under Company benefit programs shall
end upon
the Employee’s earlier employment by a new employer. Notwithstanding the
foregoing, the Board of Directors may authorize that portion of the
Annual
Base Salary and earned but unpaid bonus payable in accordance with
the
foregoing provisions of this paragraph 3(a)(ii) that does not exceed
an
amount equal to two times the maximum amount that may be taken into
account under a qualified plan pursuant to section 401(a)(17) of
the
Internal Revenue Code of 1986, as amended (the “Code”) for the year in
which the Employee’s termination of employment occurs (the “409A Exempt
Payment”) to be paid in a single lump sum to the Employee on the first
payroll date following the Employee’s termination date; and the remaining
Annual Base Salary and bonus (that is, the Annual Base Salary and
bonus
minus the 409A Exempt Payment paid to the Employee in single lump
sum) to
be paid to the Employee in 6 equal installments beginning on the
six-month
anniversary of the Employee’s termination date and ending on the one-year
anniversary of the Employee’s termination date, or until new employment
begins, whichever occurs first. In the event of termination without
“cause” pursuant to this Section 3(a)(ii), any unvested stock options
owned by Employee on the date of termination that would have vested
had
Employee remained employed under this Agreement for one year following
the
date of termination, shall vest and become exercisable as of the
date of
termination. As used in this Agreement, the term “earned but unpaid bonus”
shall refer to the non-discretionary portion of the bonus to which
Employee would have been entitled had he remained employed in his
position
for the remainder of the fiscal year of termination, prorated for
the
number of days during such year that Employee was employed by 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.
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 defined below). In said event, Employee, or
his estate, shall continue to receive his salary and shall receive
any
earned but unpaid bonus 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,
|
4
|
which
ever occurs first. Employee shall also be entitled to a lump sum
payment
equal to the average of the last 3 years bonus payments inclusive
of
deferred amounts. For purposes of this Agreement, “Disabled” means that
the Employee is unable to engage in any substantial gainful activity
by
reason of any medically determinable physical or mental impairment
that
can be expected to result in death or can be expected to last for
a
continuous period of not less than 12 months, as determined in good
faith
by the Board of Directors of the Company.
|
(b) Except
as
provided hereunder, the vesting of stock options shall be governed by the
provisions of the Company’s Stock Option Plans.
4. Change
In Control of the Company.
If (i)
there is a sale, acquisition, merger, or buyout of the Company to an
unaffiliated person, or any person that is not an “affiliate” (as such term is
defined under the Securities Exchange Act of 1934) of the Company or any of
its
shareholders on the Agreement Date becomes the legal and beneficial owner of
more than 50% of the Company’s common stock (a “Change in Control”), and (ii)
immediately prior to or within 12 months after such Change in Control, the
Employee voluntarily terminates employment under Section 3(a)(iii) in
circumstances where there has been a significant reduction in the authority,
responsibilities, position or compensation of Employee or Employee has been
required to move the location of his principal residence a distance of more
than
35 miles, and the Company has failed to remedy such situation within 30 days
after receipt of Employee’s written notice thereof, then in lieu of the
severance payments, if any, otherwise payable to the Employee under Section
3 of
the Agreement, Employee will be entitled to the following
severance:
(a) Two
times
Annual Base Salary payable in 24 monthly installments beginning on the first
day
following the six-month anniversary of the Employee’s termination date; plus a
lump sum payment equal to the amount of any earned but unpaid bonus plus the
average of the previous 3 years bonus payment, inclusive of deferred amounts,
if
any, which lump sum shall be paid to Employee on the first day following the
six-month anniversary of the Employee’s termination date. Notwithstanding the
foregoing, the Board of Directors may authorize that portion of the foregoing
payments under this paragraph 4(a) that qualify as a 409A Exempt Payment (as
defined in section 3(a)(ii)) to be paid in a single lump sum to the Employee
on
the first payroll date following the Employee’s termination date; and the
remaining Annual Base Salary amounts to be paid to the Employee in 24 equal
installments beginning on the six-month anniversary of the Employee’s
termination date and ending on the second anniversary of the Employee’s
termination date, or until new employment begins, whichever occurs first; and
the remaining bonus amount, if any, to be paid in a single lump sum on the
six-month anniversary of the Employee’s termination date. Salary continuation
shall terminate if and when Employee begins new employment during the period
of
salary continuation.
(b) Health
and welfare benefits shall be fully paid by the Company and run concurrently
with salary continuation (but if such continued health benefits are taxable
to
the Employee, then such continued health benefits shall continue only during
the
period during which the Employee would have been eligible to continue such
coverage under the Company’s health plan in accordance with section 4980B of the
Code (“COBRA”), had the Employee elected such coverage and paid the applicable
premium), without any gap in coverage.
5
Upon
the
occurrence of a Change in Control, all stock options owned by Employee shall
become fully vested and exercisable.
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
Missouri, Mississippi, Iowa, Louisiana, Colorado, Florida, the United Kingdom
and the Bahamas, is in the business of seeking new gaming properties in
additional jurisdictions 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 competes 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
or
supplemented 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 disclose or disseminate to any other person, firm or organization,
any Confidential Information other than on behalf of the Company. The foregoing
obligation shall not apply to any Confidential Information that shall have
become 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 of material value
to the Company and not known to the public or the Company’s competitors, and
which the Company has kept confidential. 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,
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, proprietary agreements with vendors,
special products and services the Company may offer or provide to its
customers/guests
6
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 five (5) 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 in consideration for Employee
receiving and being given access to confidential business information,
including, but not limited to trade secrets, customer and supplier contacts
and
relationships, goodwill, loyalty and other information, 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 (other than the termination of
7
Employee’s
employment by the Company other than for
“cause” as set forth in Section 3(a)(ii) above), Employee will (a) refrain from
carrying on or engaging in the casino or gaming business (as defined in Section
5(a)), or, without the written consent of the Company (which shall not be
unreasonably withheld), the hotel or restaurant business, in any case 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
(other than in less than 5% of any class of securities of any publicly traded
company), lender, financial backer, director, officer, employee, agent, advisor,
consultant or manager, or in any other capacity or manner whatsoever, (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 to
any
gaming operation or gaming facility within a 75-mile radius of (A) any gaming
operation or gaming facility owned (in whole or in part) by the Company or
with
respect to which the Company renders or proposes to render consulting or
management services, in each case on the date hereof or on the date of
termination of employment, or (B) any of the foregoing as to which the Company
has taken any substantive step toward owning (in whole or in part) or managing
such facility in the future.
(d) Non-Solicitation
of Employees.
In
exchange for consideration of employment, and in consideration for Employee
receiving and being given access to confidential business information,
including, but not limited to trade secrets, customer and supplier contacts
and
relationships, goodwill, loyalty and other information, and as a condition
of
employment of Employee by the Company, during the term of Employee’s employment
with the Company, 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 (other than in less than 5% of any class of securities
of
any publicly traded company), lender, financial backer, director, officer,
employee, agent, advisor, consultant or manager, or in any other capacity or
manner whatsoever, solicit for 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. This provision
will apply in the geographic areas covered in Section 5(c), and with respect
to
any sales office, regional office or the corporate headquarters of the Company,
for one (1) year after the voluntary or involuntary termination of Employee’s
employment with the Company for any reason.
(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
8
of
its assets or business (subject to the provisions
of Section 4). 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) Governing
Law, Arbitration.
The
laws of Missouri will govern the validity, construction, and performance of
this
Agreement without regard to the location of execution or performance of this
Agreement. 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.
(e) 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
9
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.
(f) Captions.
The
headings in this Agreement are for convenience only and do not affect the
interpretation of this Agreement.
(g) 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.
(h) 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.
(i) Indemnification.
The
Company shall indemnify Employee and hold Employee harmless to the full extent
permitted by Section 145 of the Delaware General Corporation Law from and
against any and all claims, liabilities and losses he may suffer arising in
connection with his employment as an officer of the Company as set forth herein,
subject to the exceptions set forth in the Delaware General Corporation Law.
The
agreement of the Company set forth in this Section 6(i) shall survive the
termination of this Agreement.
(j) 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.
000
Xxxxxxx Xxxx
Xxxxx
000
Xx.
Xxxxx, XX 00000
Attention:
President and CEO
With
a
copy to:
10
Xxxx
Xxxxxx
Xxxxx
Xxxxx LLP
00
X.
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
If
to the
Employee, to:
Xxxx
Xxxxx
c/o
Isle
of Capri Casinos, Inc.
000
Xxxxxxx Xxxx
Xxxxx
000
Xx.
Xxxxx, XX 00000
With
a
copy to:
Xxx
Xxxxxx
Xxxxxxx
& Xxxxxx LLP
00
X.
Xxxxxx Xxxxx
Xxxxxxx,
XX 00000
These
addresses may be changed at any time by like notice.
(k) 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.
11
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/Xxxxxxxx XxXxxxxx |
XXXXXXXX
XXXXXXXX
EMPLOYEE
|
By:
|
/s/Xxxx Xxxxx |
XXXX
XXXXX
