Exhibit 10.5
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into by
and between XXXXXXX XXXX (hereinafter referred to as "EMPLOYEE") and AB Capital,
LLC, a Delaware limited liability company, or its assignee (hereinafter referred
to as "EMPLOYER") as of the Closing Date (as defined in the Asset Purchase and
Sale Agreement (the "Asset Purchase Agreement"), dated January 15, 1999, between
Greater Dubuque Riverboat Entertainment Company, LC and the Company).
WHEREAS, EMPLOYER agrees to employ EMPLOYEE as its Chief Financial Officer
and Controller and EMPLOYEE agrees to accept such employment and serve as the
Chief Financial Officer and Controller.
NOW, THEREFORE, in consideration of the promises made in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties, the parties agrees as follows:
1. TERM OF AGREEMENT. The term of the Agreement shall be from the Closing
Date (as defined in the Asset Purchase Agreement) through and including the
second anniversary thereof (the "Initial Term"). This Agreement shall
automatically renew and continue for successive one-year terms commencing at the
end of the Initial Term and every year thereafter, unless either party gives the
other party written notice of the party's intention not to renew this Agreement
for a further one-year term at least ninety (90) days prior to the expiration of
any one-year term, unless terminated by agreement of the parties or pursuant to
Section 2 of this Agreement (the Initial Term, together with any subsequent
renewal period, hereinafter referred to as the "Term").
2. TERMINATION. This Agreement may be terminated at any time before any
expiration date by the agreement of the parties, and may be terminated by
EMPLOYEE upon ninety (90) days advance written notice to the Chief Operating
Officer. In addition, this Agreement may be terminated by the EMPLOYER
immediately upon the occurrence of any of the following events (a) EMPLOYEE'S
death, (b) EMPLOYEE becoming physically or mentally disabled (a "Disability"),
which Disability renders EMPLOYEE unable to perform, as certified by a mutually
agreeable competent medical physician, a substantial portion of EMPLOYEE'S
duties hereunder, (c) EMPLOYEE'S commission of an act of embezzlement, fraud,
misappropriation against the Company, (d) EMPLOYEE'S conviction of, or entry of
a plea of guilty or nolo contendere or its equivalent of, a felony, (e)
EMPLOYEE'S continued neglect or failure to discharge EMPLOYEE'S duties or
responsibilities or the repeated taking of any action prohibited by EMPLOYEE'S
immediate supervisor, the managing member or the board of managers of the
Company, (f) EMPLOYEE'S engagement of conduct injurious to the Company or having
an adverse effect on the Company's reputation or business operations, which
threatens or is likely to threaten the licensed status of the EMPLOYEE or the
EMPLOYER, (g) the revocation, suspension for more than thirty (30) days, or
voluntary
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relinquishment of any gaming license necessary for the performance of EMPLOYEE'S
duties hereunder, or (h) EMPLOYEE'S breach or violation of any material term or
material provision of this Agreement; provided, however, that, in the case of
clauses (e), (f), (g) and (h) of this Section 2, EMPLOYEE shall be entitled to
thirty (30) days notice of termination, during which thirty (30) day period
EMPLOYEE shall have the right to remedy any such breach or default.
3. DUTIES. EMPLOYEE shall carry out the duties and responsibilities
generally as identified as the Comptroller or Chief Financial Officer of the
Company, consistent with the terms of the Position Description appended to the
Agreement as Exhibit A and which may be amended from time to time, consistent
with the above-defined general responsibilities by the EMPLOYER'S Chief
Operating Officer or Board of Directors Managing Member.
4. COMPENSATION AND BENEFITS.
a. EMPLOYEE shall be paid by EMPLOYER (i) as compensation for her
services for the 1999 calendar year the base annual salary of Eighty-Two
Thousand Five Hundred Dollars ($82,500) and (ii) as a bonus, upon
execution of this Agreement by EMPLOYEE, the amount of Twenty-Five
Thousand Dollars ($25,000). EMPLOYEE'S base annual salary shall be
reviewed on an annual basis and adjusted upward annually by not less than
five percent (5%) of the prior year's compensation. In addition to the
base salary, upon completion of each year of service with the EMPLOYER,
EMPLOYEE shall be entitled to receive a cash bonus payable by the EMPLOYER
based on EMPLOYEE'S performance during the previous employment year, which
shall be not less than Twenty Thousand Dollars ($20,000.00). If this
Agreement is terminated prior to completion of any term, EMPLOYEE shall be
eligible for a prorated bonus at termination.
b. To the extent not inconsistent with EMPLOYEE'S status as a
salaried employee under a continuing contract, EMPLOYEE shall be entitled
to all benefits accorded full time employees of EMPLOYER in accordance
with the terms of the EMPLOYER'S personnel policies.
5. SALE OF EMPLOYER'S BUSINESS. In the event the controlling interest in
the EMPLOYER or the EMPLOYER'S assets and operations are transferred or sold to
an unrelated entity at any time during any term of this Agreement, EMPLOYEE
shall receive at the time of such sale as severance pay an amount equal to
twelve (12) months' base salary.
6. INDEMNIFICATION. EMPLOYER shall indemnify, defend and hold and save
EMPLOYEE, her heirs, administrators or executors and each of them harmless from
any and all actions and causes of action, claims, demand, liabilities, losses,
damages or expenses, of whatsoever kind and nature, including judgments,
interest and reasonable attorney's fees and all other reasonable costs, expenses
and charges which EMPLOYEE, her heirs, administrators or executors and each of
them shall or may at any time or from time to time, subsequent to the effective
date of this Agreement, sustain or incur, or become subject to by reason of any
claim or claims against EMPLOYEE, her heirs, administrators or executors and
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each of them while acting within the scope of her employment, except for
negligence, misconduct or criminal acts or omissions on the part of the
EMPLOYEE, and provided that EMPLOYEE, her heirs, administrators or executors or
one of them properly and promptly notifies EMPLOYER of adverse claims or
threatened or actual lawsuits. EMPLOYEE, her heirs, administrators or executors
as appropriate, shall provide complete cooperation to EMPLOYER, its attorneys
and agents in such case to the extent possible.
7. NON-COMPETITION AGREEMENT.
a. Both parties acknowledge that the EMPLOYEE'S position is one of
considerable responsibility and requires considerable training,
relationships and contacts with customers, clients and potential customers
and clients, and experience that it will take a substantial amount of
EMPLOYER'S time to replace an employee who has received such training,
relationships, contacts and experience as are typically afforded by
EMPLOYER; and
b. As a condition of employment and continued employment of EMPLOYEE
by EMPLOYER, the parties mutually agree that confidentiality of
proprietary matters is required in connection with the business of
EMPLOYER and in connection with the operations and the names of EMPLOYER'S
customers and clients, and that accordingly, it is vital that EMPLOYER be
protected from direct or indirect competition from key employees whose
employment might be terminated by or from EMPLOYER, said protection
required during employment and for a reasonable period of time after
termination thereof.
c. It is hereby agreed by and between the parties that, as a part of
the valuable consideration of the employment and continued employment of
EMPLOYEE by EMPLOYER:
(1) That EMPLOYEE shall treat and keep secret all proprietary
matters relating directly or indirectly to the business of
EMPLOYER, including but not limited to, the content of all
manuals, memoranda, production, marketing, promotional and
training materials, financial statements, sales and operations
records, business methods, systems and forms, production
records, billing rates, cost rates, employee salaries and work
histories, customer and client lists, mailing lists,
processes, inventions, formulas, job production and cost
records, special terms with customers and clients or any other
proprietary information relative to the past, present or
prospective customers and operations as completely
confidential information entrusted to her solely for use in
her capacity as an employee of EMPLOYER. EMPLOYEE further
agrees not to keep and/or use any papers, records, or any
information whatsoever relative to any of the matters referred
to in the preceding sentence, nor shall EMPLOYEE furnish, make
available or otherwise divulge such information to any person
during or after her employment by
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EMPLOYER, unless specifically instructed to do so in writing
signed by the Chief Operating Officer or Managing Member of
EMPLOYER.
(2) That if for any reason EMPLOYEE shall voluntarily or
involuntarily terminate her employment or EMPLOYER shall
terminate EMPLOYEE, it is specifically agreed and understood
that EMPLOYEE, for a period of one (1) year from the date of
termination, shall not, within a radius of fifty (50) miles of
Dubuque, Iowa (the "Territory"), directly or indirectly engage
in, be interested in, or in any manner whatsoever be connected
with any casino located within the Territory.
(3) That if for any reason EMPLOYEE shall voluntarily or
involuntarily terminate her employment or EMPLOYER shall
terminate EMPLOYEE, it is specifically agreed and understood
that EMPLOYEE, for a period of one (1) year from the date of
termination, shall not, directly or indirectly, in any
capacity whatsoever, hire or solicit for employment any
employee of EMPLOYER.
8. ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement contains the
entire agreement of the parties and here are no other promises or conditions in
any other agreement whether oral or written. This Agreement supersedes any prior
written or oral agreement between the parties. Notwithstanding Section 5 of this
Agreement, this Agreement shall inure to the benefit of EMPLOYER'S successors
and assigns.
9. AMENDMENTS. This Agreement may be modified or amended, if the amendment
is made in writing and is signed by both parties.
10. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid and enforceable, then such provision shall be deemed to be
written, construed and enforced as so limited.
11. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce
any provision of this Agreement shall not be construed as a waiver or limitation
of that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
12. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Iowa.
13. REPRESENTATION. The undersigned persons executing this Agreement for
and on behalf of EMPLOYER as its sole Managing Member represent that he is fully
authorized to sign this Agreement for and on behalf of EMPLOYER, and that
EMPLOYEE may rely upon this representation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
EMPLOYER: EMPLOYEE:
AB CAPITAL, LLC
By /s/ M. Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxx
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M. Xxxxx Xxxxxxx, Managing Member Xxxxxxx Xxxx
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