Exhibit 10.15
MISSISSIPPI BAND OF CHOCTAW INDIANS
d/b/a
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
This Agreement is made effective as of March 20, 2002, by and between
Xxxxxxx Xxxxxxx (hereinafter called "Executive") and the Mississippi Band of
Choctaw Indians d/b/a Resort Development Enterprise (hereinafter called
"Employer").
Now, therefore, in consideration of the premises and the mutual
covenants and agreements herein contained, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
Section 1. Duties of Executive:
Employer hereby employs Executive as the Chief Operating Officer of
Gaming Operations on the terms and conditions hereinafter stated. Executive
hereby agrees that during the term of his employment hereunder, he will
faithfully, industriously and to the best of his ability and experience perform
all duties (as listed in Exhibit A) that may be required of him by virtue of his
position as Chief Operating Officer of Gaming Operations and all duties of the
Chief Operating Officer of Gaming Operations as may be set forth in Employer's
By-Laws or resolutions of the Employer's Board of Directors to the reasonable
satisfaction of the Employer's President and Board of Directors and in
accordance with all applicable laws and regulations. The employment pursuant to
this Agreement shall be considered full-time employment, such that Executive
shall devote necessary time, attention and energy to Employer's business and
shall not during the term of this Agreement accept other employment for gain or
profit without the prior written consent of Employer. However, the acceptance of
full-time employment under this Agreement will not restrict Executive from
making investments in other business enterprises, so long as such other
businesses do not compete with Employer and do not violate any conflict of
interest restrictions of the Employer.
Section 2. Compensation:
(a) Base Salary. Employer agrees to pay to Executive as
compensation for the services to be performed by him during
the term of his employment hereunder, a salary at the rate of
$260,000.00 per annum subject to an annual merit increase as
recommended by the President and approved by the Board of
Directors. Such annual salary, as adjusted each Employer
fiscal year, shall be payable in equal bi-weekly installments
throughout the term of the contract.
(b) The Executive shall receive an annual basis bonus in an amount
determined by using the bonus calculation methodology
contained in Choctaw Resort Development Enterprise bonus plan
dated May 3, 2001. For purpose of Executive's bonus
calculation, Executive shall be considered as a "Tier 1" level
employee.
(c) Employer will pay Executive those fringe benefits and leave
time provided regular full-time employees as set forth in the
Administrative Personnel Policies and Procedures of the
Enterprise.
Section 3. Term and Renewal:
(a) The term of this Agreement shall commence on March 20, 2002 and
end on March 19, 2006, unless renewed pursuant to paragraph 3(b)
or unless sooner terminated in accordance with Section 4.
(b) This Agreement may be renewed upon agreement in writing by the
parties. The Executive shall propose terms for a renewal at least
six (6) months prior to the expiration of this Agreement.
Employer shall respond to said terms within three (3) months of
the expiration of this Agreement.
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Section 4. Termination:
(a) Mutual Agreement. This Agreement may be terminated at any time
upon the mutual written agreement of the parties.
(b) Disability. If Executive is unable to perform his duties
hereunder due to illness or disability for a period of 180
consecutive days, then Employer may at its option hire a
replacement and/or terminate this Agreement, and Employer shall
pay salary earned through the effective date of termination and
any benefits that have vested prior to such termination.
(c) Death. If Executive dies during the term of this Agreement, this
Agreement shall automatically terminate, and Employer's only
obligation shall be to pay any portion of the salary earned by
Executive and any benefits that have vested in Executive pursuant
to this Agreement prior to termination.
(d) Employer Unilateral Termination or Nonrewewal. Employer may
terminate this Agreement for any reason at any time effective
upon recommendation of the President and a majority vote of the
Directors at a meeting of the entire Board of Directors. However,
in the event of such unilateral termination (for reasons other
than those specified in Section 4 (a)(b) or (c)), then Employer
shall pay Executive one (1) year base salary in effect on the
date of termination. Employer shall not be required to make
compensation continuation payments, and continue insurance
benefits pursuant to this paragraph if (i) the termination
results from the conviction of the Executive of a felony, (ii)
the termination results from the Executive's continued violation
of Employer By-Laws, violation of the tribal, state, or federal
laws or regulations relating to Employer operations, or violation
of the prohibition against the Executive having an interest in an
enterprise that competes with Employer for a period of at least
ten (10) days after receiving a written notice from the Board of
Directors that specifies the violation, or (iii) Executive fails
to meet the standards of performance to the satisfaction of the
President and Board of Directors in Exhibit "A" which is attached
and incorporated herein, or (iv) the Employer's business is sold
or discontinued. Executive's acceptance of other employment
following Employer's termination shall not affect Employer's
obligations under this paragraph; except that if Executive shall,
either directly or indirectly accept employment with or make any
investment in or receive any compensation from any business
enterprise in competition with Employer, then Employer's
obligations of continued payments shall cease.
(e) Facility Closure. In the event Employer closes its facilities,
Employer shall continue to pay Executive his base salary and
continue insurance benefits for a period of one (1) year from the
date of the facility closing.
(f) Resignation. The Executive may terminate this Agreement at any
time effective upon sixty (60) days prior to written notice to
Employer. No bonus, salary or benefit continuation shall be
payable in such situation.
Section 5. Employer Property:
Executive agrees that upon termination, expiration or resignation, he
will promptly return to Employer any property owned by Employer.
Section 6. Confidentiality:
Employer has developed and compiled, at substantial cost, certain
products, technology, commercial data, and other materials that are confidential
and proprietary in nature. Executive agrees to maintain the confidentiality of
any such products, technology, financial data, and other materials and
information developed or produced by Employer, the Mississippi Band of Choctaw
Indians, or the predecessors, successors or affiliated companies of any of them
of which Executive gains knowledge or access by reason of his employment
relationship with Employer. Executive further agrees that he will not use or
disclose, either directly or indirectly, any of such products,
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technology, data, or information unless (i) the information has already
been made public without any participation by Executive, (ii) disclosure is
required by law or regulation, or (iii) Employer, its joint venture partners,
and their affiliated companies having a proprietary interest in the information
or technology consent in writing to the disclosure.
Section 7. Severability:
It is agreed that if any clause or provision of this Agreement is
found by the court to be invalid, illegal, or unenforceable, the rest of
Agreement shall not be affected, and the rights and obligations of the parties
shall be enforced as if the Agreement did not contain such illegal, invalid, or
unenforceable clause or provision.
Section 8. Waiver of Provisions:
Failure of either party to insist, in one or more instances, on
performance by the other in strict accordance with the terms and conditions of
this Agreement shall not be deemed a waiver of relinquishment of any right
granted hereunder or of the future performance of any such term or condition or
of any other term or condition of this Agreement, unless such waiver is
contained in a writing signed by or on behalf of both parties.
Section 9. Notices:
Any notice or other communication required or permitted hereunder shall
be deemed sufficiently given if personally delivered or sent by registered or
certified mail, postage and fees prepaid, addresses to the party to be notified
as follows:
(a) If to Employer: Mississippi Band of Choctaw Indians
d/b/a Resort Development Enterprise
Chief Xxxxxxx Xxxxxx
Chairman of Board
Tribal Office Building
P.O. Box 6010, Choctaw Branch
Xxxxxxx, XX 00000
(b) If to Executive: Xxxxxxx Xxxxxxx
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Or in each case to such other address as either party may from time to time
designate in writing to the other. Such notice or communication shall be deemed
to have been given as of the date so mailed or personally delivered.
Section 10. Modification and Amendment:
This Agreement contains the sole and entire Agreement between the
parties hereto and supersedes all prior discussions and agreements between the
parties with respect to the subject matter hereof, and any such prior
agreements, shall, from and after the date hereof, be null and void. Except as
otherwise specifically provided, the terms and conditions of this Agreement may
be amended at any time by mutual agreement of the parties, provided that before
any amendment shall be valid or effective, it shall have been reduced to writing
and signed by the Chairman of Employer's Board and Executive.
Section 11. Binding Effect:
This Agreement shall be binding upon and inure to the benefit of
Employer, its successors and assigns, and upon Executive, his administrators,
executors, legatees, heirs, and assigns.
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Section 12. Indian Preference:
The Executive recognizes the principle of Choctaw Self-Determination
and will employ, train, promote or discharge employees of Employer in compliance
with the policy of Indian preference, including formal and on the job training
at the management level, with an annual report to be made through the Chief to
the Tribal Council. A career tracking system will be established by the Tribe
and Employer to allow Choctaw college students to work for Employer with
follow-up and support provided. All steps taken in furtherance of Indian
Preference are subject to the approval of the Board of Directors of the
Employer.
Section 13. Covenant Not to Compete.
(a) Restrictions. In consideration of the confidential information
disclosed to Executive and as an inducement to Employer to enter
into this Agreement and to pay the compensation referred to
herein, Executive agrees that, unless otherwise agreed in writing
by Employer, during the term of this Agreement and continuing
until the end of twelve (12) months following termination of his
employment pursuant to Section 4(f) (Resignation), Executive
shall not enter negotiations for any investment in or employment
or services with or on behalf of any competitor of Employer. For
purposes of this Agreement a competitor of Employer is considered
to be any gaming facility in Mississippi or Alabama. For purposes
of this Section, prohibited "negotiations" by Executive shall
include the direct or indirect discussions of investments in a
competitor or contractual arrangements for consulting, employment
or other services, either as an individual or as a partner,
employee, member, officer, director, or shareholder of any legal
entity.
(b) Remedies. Executive has carefully read and considered the
provision of this Section, and having done so, agrees that the
restrictions are fair and reasonable and are reasonably required
for the protection of the investment of Employer and do not
prevent Executive from earning a livelihood in the event of
termination of employment pursuant to this Agreement. In the
event of a breach or threatened breach by Executive of any the
provision of this Section, Employer, in addition to and not in
limitation of other rights, remedies or damages available to
Employer at law or in equity, shall be entitled to a permanent
injunction in order to prevent or restrain any such breach by
Executive or by Executive's future partners, employers, or any
other third persons acting directly or indirectly for or with
Executive. Without limiting the foregoing, Employer shall also be
entitled to seek actual damages which Employer may suffer as a
result of a violation of this Section.
(c) Reformation. In the event that any of the provisions of this
Section 13 shall be held to be invalid or unenforceable by a
court of law, the remaining provisions shall nevertheless
continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included, and the restrictions
on time and locations of practice may be reformed by the court so
as not to exceed the maximum time period or location restrictions
which the court deems reasonable and enforceable.
Section 14. Comps
Executive acknowledges that under tribal law he cannot and shall not be
allowed to grant "comps" to members of the Tribal Council.
Section 15. Pearl River Resort Handbook
Executive understands that he is responsible for implementing,
mentoring, and carrying out the Resort mission, values, and terms of the Pearl
River Resort Handbook.
Section 16. Governing Law
This Agreement and any related documents shall be construed according
to the laws of the Mississippi Band of Choctaw Indians and the State of
Mississippi (pursuant to Section 1-1-4, Choctaw Tribal Code.) Exclusive venue
and jurisdiction shall be in the Tribal Court of the Mississippi Band of Choctaw
Indians. This Agreement and
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any related document is subject to the Choctaw Tribal Tort Claims Act.
Nothing contained in this Agreement or any related documents shall be construed
or deemed to provide recourse to Government Services Division assets.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above mentioned.
MISSISSIPPI BAND OF CHOCTAW INDIANS
d/b/a RESORT DEVELOPMENT ENTERPRISE
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Chairman of Board
ATTEST:
By: /s/ Xxxxxxxx Xxx
--------------------------------
Xxxxxxxx Xxx
Secretary-Treasurer
EXECUTIVE:
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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