Exhibit 10.15
AGREEMENT
This Agreement is made and entered into this day of , 2002 (this
"Agreement") by and between ARGOSY GAMING COMPANY, a Delaware corporation (the
"Company") and Xxxx X. Xxxxx, an individual residing in the State of Missouri
(the "Employee");
RECITALS:
The Compensation Committee of the Company's Board of Directors believes it
is in the best interest of the Company to enter into this Agreement with the
Employee.
NOW THEREFORE, in consideration of the premises and of the covenants and
agreements herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. The Company agrees that the Employee shall be employed by
the Company during the term of this Agreement initially in the capacity of Sr.
Vice President, Chief Financial Officer or in such other capacity as determined
by the Company's Chief Executive Officer or Board of Directors. The Employee
shall have such duties and responsibilities as are assigned to the Employee by
the Chief Executive Officer or Board of Directors of the Company. The Employee
acknowledges and agrees that the Employee's duties and responsibilities
hereunder may include serving as an officer of the Company's subsidiaries and
affiliates without any additional compensation therefore. The Employee hereby
accepts employment from the Company upon the terms and conditions herein set
forth and agrees to devote his/her best efforts and energies to the business of
the Company.
2. TERM. The effective date of this Agreement shall be January 1, 2002
("Effective Date") and such Agreement shall continue unless terminated as
hereinafter provided in Sections 5 and 6 hereof.
3. COMPENSATION.
(a) BASE SALARY. Subject to the terms and conditions set forth in
this Agreement, the Company shall pay to Employee a Base Salary equal to
$240,000.00 per annum. The Company shall pay the Base Salary to Employee in
accordance with the usual and customary payroll procedures of the Company.
Further, this Base Salary may be adjusted at any time without altering the terms
of this Agreement.
(b) OTHER COMPENSATION. You shall be eligible to participate in any
and all stock option and bonus programs created by the Compensation Committee of
the Board of Directors; provided, however, the Compensation Committee has sole
and absolute discretion in granting stock options and establishing the criteria
for any and all bonus programs. The terms and conditions of each of the stock
option programs, the stock option grant and the bonus program will be more fully
set forth in any Stock Option Agreements and stock grant certificates adopted
and delivered respectively and in the definitive bonus plan.
(c) FRINGE BENEFITS. The Employee shall be entitled to participate in
all insurance and other fringe benefit programs of the Company as are accorded
other employees of
the Company holding similar positions as the Employee. The employee shall be (i)
entitled to participate in the company's health plan effective the first day of
employment if a new employee, and (ii) entitled to coverage or reimbursement for
any family medical and dental costs not covered by the Company's plans, subject
to the Company's Supplemental Medical and Dental Reimbursement Plan for
Executives and regulatory guidelines.
(d) SPECIAL ALLOWANCES. The Company agrees to pay a special allowance
of $500 per month.
(e) COMPLIMENTARY PRIVILEGES. The Employee shall be entitled to an
employee discount of not less than 25% at Company retail establishments. The
Employee and his/her immediate family shall be entitled to complimentary
privileges in the Company restaurants and eating establishments.
(f) REIMBURSEMENT OF EXPENSES. The Employee shall be reimbursed for
all items of travel and entertainment and miscellaneous expenses reasonably
incurred by him/her on behalf of the Company. Reimbursement for such expenses
will be pursuant to, and limited by, the Company's policies with respect to
reimbursing business expenses of employees of the Company holding similar
positions as the Employee and will require proper documentation.
(g) ENTIRE COMPENSATION. The compensation and benefits provided for
in this Agreement are in full payment of the services to be rendered by the
Employee to the Company.
4. CHANGE OF CONTROL. In the event that there occurs a Change of Control
(as hereinafter defined) of the Company, the Employee shall, notwithstanding any
actions taken by the Company or its successor after the Change of Control, be
entitled to an amount equivalent to three (3) years of Base Salary and one (1)
year of Benefits (grossed up at Excise Tax rate).
Such amount shall be paid on the Change of Control Date (i) if the Employee
is offered a position with lesser responsibility, or lesser salary as a result
of the Change of Control, or is offered a position with lesser responsibility,
or lesser salary within one (1) year after the Change of Control; or (ii) the
Employee elects to terminate his/her employment on the Change of Control Date.
In the event the Employee's employment is terminated after the public
announcement of a Change of Control but prior to the consummation of a Change of
Control for any reason other than those set forth in Sections 5, 6(a), (b), (d)
or (e), then the Employee shall be entitled to an amount equivalent to three (3)
years of Base Salary and one (1) year Benefits (grossed up at the Excise Tax
rate).
For purposes hereof, Change of Control shall mean (i) any merger or
consolidation of the company with or into any person or any sale, transfer or
other conveyance, whether direct or indirect, of all or substantially all of the
assets of the company, on a consolidated basis, in one transaction or a series
of related transactions, if, immediately after giving effect to such
transaction, any "person" or "group" (as such terms are used for purposes of
Sections 13 (d) and 14 (d) of the Exchange Act, whether or not applicable)
(other than an Excluded Person) is or becomes the "beneficial owner," directly
or indirectly, or more than 40% of the total voting power in the aggregate
normally entitled to vote in the election of directors, managers, or
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trustees, as applicable, of the transferee or surviving entity, (ii) any
"person" or "group" (as such terms are used for purposes of Sections 13 (d) and
14 (d) of the Exchange Act, whether or not applicable) (other than an Excluded
Person) is or becomes the "beneficial owner," directly or indirectly, of more
than 40% of the total voting power in the aggregate normally entitled to vote in
elections of directors of the company, or (iii) during any period of 12
consecutive months after the Effective Date, individuals who at the beginning of
any such 12-month period constituted the Board of Directors of the Company
(together with any new directors whose elections by such Board or whose
nomination for election by the shareholders of the Company was approved by a
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office.
For purposes hereof, Benefits shall mean benefits substantially similar to
any and all benefits received by or which exist for the benefit of the Employee
and such dependents as were covered immediately prior to the announcement of the
Change of Control.
5. DEATH OR TOTAL DISABILITY OF EMPLOYEE.
(a) DEATH. In the event of the death of the Employee during the term
of this Agreement, this Agreement shall terminate effective as of the date of
the Employee's death and the Company shall have no further obligations or
liability hereunder, except the Company shall pay to the Employee's estate the
portion, if any, of the (i) Employee's Base Salary for the period up to the
Employee's date of death which remains unpaid; and (ii) amounts payable pursuant
to any employee benefits plans in which the Employee was a participant prior to
his/her death.
(b) DISABILITY. In the event the Employee suffers a Disability (as
hereinafter defined) during the term of this Agreement, the Company shall have
the right to terminate the Employee's employment hereunder by giving the
Employee ten (10) days written notice thereof, and upon expiration of such ten
(10) day period, the Company shall not have any further obligations or liability
under this Agreement, except the Company shall pay to Employee the portion, if
any, of: (i) the Employee's Base Salary for the period to the date of
termination which remains unpaid; and (ii) any amounts payable pursuant to any
employee benefit plans in which the Employee was a participant prior to the date
of his termination.
The term "Disability", when used herein, shall mean when the Employee
qualifies for a benefit under the Company's long term disability plan or if the
Company does not have a long term disability plan, it shall mean a mental or
physical condition which, in the reasonable opinion of the Company's designated
medical doctor, renders the Employee unable or incompetent to carry out the job
responsibilities he/she held or tasks to which he/she was assigned at the time
the disability was incurred for a period of 60 consecutive days or 60 days in
any 12 consecutive month period.
6. TERMINATION. Notwithstanding anything contained in this Agreement to
the contrary, the Employee's employment under this Agreement may be terminated
by the Company upon written notice to Employee for any of the following reasons:
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(a) If the Employee is denied a gaming license by any state gaming
board or any other gaming authority having jurisdiction over the operations of
the Company or its subsidiaries or affiliates ("Gaming Body"), or if the
Employee's license issued by any Gaming Body is suspended, revoked, sanctioned
or reprimanded for any period of time or for any conduct;
(b) If the Employee commits an offense involving moral turpitude
under Federal, State or local laws or ordinances or conducts himself/herself
publicly or privately in any manner which causes him/her to be held in public
ridicule or scorn, or causes public scandal or uses liquors, narcotics or drugs
to such an extent as will have visible detrimental effect on the Company;
(c) If the Employee fails to perform his/her job responsibilities in
a manner satisfactory to the Chief Executive Officer or the Board of Directors;
(d) If the Employee knowingly violates any of the internal control
procedures and/or company policies of the Company; or, knowingly violates any
statute, rule or regulation of any Gaming Body, the United States Coast Guard,
or any other governmental body having jurisdiction over the business activities
of the Company; and;
(e) If the Employee breaches any term or condition of this agreement.
Except in the event the Employee is terminated pursuant to Section 6(a)
above, in the event that the Company shall terminate the Employee's employment
pursuant to this Section 6, the Company shall not have any further obligations
or liabilities under this Agreement, except the Company shall (a) pay to the
Employee his/her Base Salary up to the 30th day following the date of the
Employee's termination hereunder or if the termination is pursuant to Section
6(c) hereof or pursuant to a job elimination with results in a discontinuation
of employment with the Company, then the Company shall pay to Employee his/her
Base Salary for 12 months and an amount equal to his/her banked, but not yet
paid bonus following the date of the Employee's termination; and (b) any amounts
or benefits payable pursuant to any employee benefit plan in which the Employee
was a participant prior to the date of his/her termination, subject, however, to
the terms and provisions of any such employee benefit plan.
Without limiting the foregoing, the Employee shall surrender all vehicles,
credit cards, uniforms, cellular telephones, pagers and other Company property
to the Company prior to any payment to the Employee hereunder.
Following any notice of termination of employment hereunder, Employee shall
fully cooperate with the Company in all matters relating to the winding up of
his/her pending work on behalf of the Company and the orderly transfer of such
work to the other professional employees of the Company. On or after the giving
of notice of termination hereunder and during any applicable notice period, the
Company shall be entitled to such full-time or part-time services of Employee as
the Company may reasonably require.
7. DISCOVERIES. The Employee will promptly disclose in writing to the
Company each improvement, discovery, idea, concept and invention relating to the
business of the Company, made or conceived by the Employee either alone or in
conjunction with others while
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employed by the Company hereunder or within six (6) months after the termination
of such employment. This provision shall not apply to an invention for which no
equipment, supplies, facility or trade secret information of the Company was
used and which was developed entirely on the Employee's own time, and (a) which
does not relate (i) to the business of the Company or (ii) to the Company's
actual or demonstrably anticipated research or development, or (b) which does
not result from any work performed by the Employee for the Company. The Employee
will not disclose any such improvement, discovery, idea, concept or invention to
any person except the Company. Each such improvement, discovery, idea, concept
or invention shall be the sole and exclusive property of, and is hereby assigned
to, the Company, and at the request of the Company, the Employee will assist and
cooperate with the Company and any person or persons (at the Company's or such
other person's expense) from time to time designated by the Company to obtain
for the Company the grant of any letters patent in the United States and/or such
other country or countries as may be designated by the Company, covering any
such improvement, discovery, idea, concept or invention and will in connection
therewith execute such applications, statements, assignments or other documents,
furnish such information and data and take all such other action (including,
without limitation, the giving of testimony) as the Company may from time to
time reasonably request.
8. NON-DISCLOSURE AND NON-COMPETITION.
(a) The Employee recognizes and acknowledges that he/she will have
access to certain confidential information of the Company, including but not
limited to, trade secrets, customer lists, sales records, future casino
development plans and other proprietary commercial information, and that such
information constitutes valuable, special and unique property of the Company.
The Employee agrees that he/she will not, for any reason or purpose whatsoever,
during or after the term of his/her employment, disclose any of such
confidential information to any party without express authorization of the
Company, except as necessary in the ordinary course of performing his/her duties
hereunder.
(b) The Employee agrees with the Company that during the term of
his/her employment with the Company (or any affiliate or subsidiary of the
Company) and for a period of one (1) year following the termination of his/her
employment with the Company (or any affiliate or subsidiary of the Company),
he/she will not, without prior written consent of the Company, engage directly
or indirectly in any business (either financially or as a shareholder, employee,
officer, partner, independent contractor or owner, or in any other capacity
calling for the rendition of personal service or acts of management, operation
or control) which owns, operates or manages casinos, bingo parlors or other
gaming facilities within the Territory (as hereinafter defined); provided,
however, that Employee may own up to three percent (3%) of any class of
securities of a corporation engaged in such a competitive business if such
securities are listed on a national securities exchange or registered under the
Securities Exchange Act of 1934.
(c) The Employee further agrees that for a period of ninety (90) days
following the termination of his/her employment with the Company (or any
affiliate or subsidiary of the Company), he/she will not, without prior written
consent of the Company, recruit any other Company employees away from the
Company.
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(d) The term "Territory" as used herein shall mean a 150 mile radius
of each casino, bingo parlor or gaming facility being operated or managed by the
Company or for which the Company has either received a local community
endorsement or filed for a gaming license as of the date of termination.
(e) The Employee acknowledges that his/her compliance with the
agreements in paragraphs 8(a) and 8(b) hereof is necessary to protect the good
will and other proprietary interests of the Company and that he/she is one of
the principal executives of the Company and conversant with its affairs, its
trade secrets, its customers and other proprietary information. The Employee
acknowledges that a breach of his/her agreements in paragraphs 8(a) and 8(b)
hereof will result in irreparable and continuing damage to the Company and the
business of the Company, for which there will be no adequate remedy at law; and
agrees that in the event of any breach of the aforesaid agreements in paragraphs
8(a) and 8(b), the Company and its successors and assigns shall be entitled to
injunctive relief of 50% of the Employee's annual salary and to such other and
further relief as may be proper. The Employee further agrees that in the event
of any breach of the agreement in paragraph 8(c), the Company and its successors
and assigns shall be entitled to injunctive relief of 100% of the Employee's
annual salary and to such other and further relief as may be proper.
9. SUPERSEDES OTHER AGREEMENTS. This Agreement supersedes and is in lieu
of any and all other employee arrangements between the Employee and the Company
or any of their respective subsidiary and affiliated companies.
10. AMENDMENTS. Any amendment to this Agreement, including any extensions
or renewal of the term of employment of Employee, shall be made in writing and
signed by the parties hereto.
11. ENFORCEABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, in whole or in part, then such provision shall be
deemed to be modified or restricted to the extent and in the manner necessary to
render the same valid and enforceable, or shall be deemed excised from the
Agreement as the case may require, and this Agreement shall be construed and
enforced to the maximum extent permitted by law, as if such provision had been
originally incorporated herein as so modified or restricted, or as if such
provision had not been originally incorporated herein, as the case may be.
12. GOVERNING LAW. The validity and effect of this Agreement shall be
governed exclusively by the laws of the State of Illinois, excluding the
"conflicts of laws" rules of that state.
13. ASSIGNMENT.
(a) The rights and obligations of the Company under this Agreement
shall inure to the benefit of, and shall be binding upon, the successors and
assigns of the Company, subject to the provisions set forth in Section 4 hereof.
(b) This Agreement and the obligations created hereunder may not be
assigned by the Employee.
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14. ATTORNEYS' FEES. In the event any legal action to enforce the terms
and conditions of this Agreement is commenced, reasonable attorneys' fees, court
costs and all reasonable costs of litigation shall be awarded to the prevailing
party.
15. NOTICES. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed to have been given when personally delivered
or mailed, by certified or registered mail, return receipt requested, addressed
to the intended recipient as follows:
IF TO THE EMPLOYEE:
Xxxx X. Xxxxx
0000 Xxxxxxxxxxx Xxxxx
Xx. Xxxxxxx, XX 00000
IF TO THE COMPANY:
Argosy Gaming Company
000 Xxxxx Xxxxxx
Xxxxx, XX 00000
ATTN: Legal Department
Any party may from time to time change its address for the purposes of
notices to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
party sought to be charged with the contents.
16. WAIVER. No claim or right arising out of a breach or default under
this Agreement can be discharged in whole or in part by a waiver of that claim
or right unless the waiver is supported by consideration and is in writing and
executed by the aggrieved party hereto or its or his/her duly authorized agent.
A waiver by any party hereto of a breach or default by the other party hereto of
any provision of this Agreement shall not be deemed a waiver of any prior or
subsequent compliance therewith, and such provision shall remain in full force
and effect.
IN WITNESS WHEREOF, this Agreement has been executed by the Company, by a
duly authorized officer, and by the Employee on the date first above written.
ARGOSY GAMING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Title: Senior Vice President
------------------------
Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
-------------------------------
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