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Exhibit 10.31
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Employment Agreement")
entered into as of the first day of December, 1998, by and between Horseshoe
Gaming, Inc., a Nevada Corporation ("Employer"), and Xxxx Xxxxx ("Employee").
RECITALS
WHEREAS, Employer is the Manager of Horseshoe Gaming, LLC, a Delaware
limited liability company (the "LLC"), whose subsidiaries and affiliates have
developed and are currently operating casino and hotel facilities in Tunica,
Mississippi (the "Tunica Facility"), and in Bossier City, Louisiana (the
"Bossier City Facility" and, together with the Tunica Facility, referred to as
the "Existing Facilities"), and who is party to an agreement to acquire
additional casino and hotel facilities in Hammond, Indiana (the "Hammond
Facility") and Joliet, Illinois (the "Joliet Facility" and, together with the
Hammond Facility referred to as the "To Be Acquired Facilities"); and
WHEREAS, Employer and Employee are parties to an employment agreement
dated January 1, 1997 (the "Original Employment Agreement") which is due to
expire on December 31, 1998; and
WHEREAS, Employer desires to continue to Employ Employee, and Employee
desires to continue to accept such employment, pursuant to the terms of this
Employment Agreement, and in furtherance of such desire Employer and Employee
wish to amend and restate the Original Employment Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and in consideration of the mutual
covenants, promises and agreements herein contained, the parties hereto agree as
follows:
AGREEMENT
1. Definitions. All capitalized words referenced or used in this
Employment Agreement and not specifically defined herein shall have the meaning
set forth on Exhibit A, which is attached hereto and by this reference made a
part hereof.
2. Term. This Employment Agreement shall become effective on the date
first above written (the "Commencement Date") and shall continue in effect for a
period terminating December 1, 2002, unless terminated sooner by Employer or
Employee pursuant to the terms set forth herein.
3. Position to be Held by Employee. Employee is hereby employed and hired
by Employer to serve and act as the Vice President-Data Base Marketing and
Analysis for Employer, and shall perform each and all of the duties and shall
have all of the responsibilities described herein. Employee shall at all times
report directly to and take directives from the Senior Vice President-Marketing
of Employer (the "Supervisor").
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4. Duties and Responsibilities.
A. Duties. In his capacity as Vice President-Data Base Marketing and
Analysis of Employer, Employee shall have the responsibility for overseeing the
marketing operations of the Existing Facilities and the To Be Acquired
Facilities, if acquired, and assisting in the opening of any casino and hotel
facilities to be developed and/or acquired by subsidiaries or affiliates of the
LLC (together with the Existing Facilities and the To Be Acquired Facilities
referred to individually as a "Facility" and collectively as the "Facilities")
in a manner so as to maximize, to the best of his ability, the profitability of
each Facility, for and on behalf of the LLC in accordance with all applicable
laws and regulations. The authority of Employee to bind Employer shall be as
broad or as limited as may be determined from time to time by the Supervisor or
the Board of Directors of Employer (the "Board").
B. Fiduciary Duty. In every instance, Employee shall carry out his
various duties and responsibilities in a fiduciary capacity on behalf of
Employer, in an effort to maximize the profitability of Employer. In no event
whatsoever shall Employee enter into any commitments or obligations, written or
verbal, or take or omit to take any other action, the result of which would be
to create a conflict of interest between Employer and Employee, or the result of
which would (directly or indirectly) benefit Employee, or any person associated
with or affiliated with Employee, or in any manner involved in the gaming
industry to the detriment of Employer. In all instances, Employee shall perform
his services and oversee his department in a thorough, competent, efficient and
professional manner.
C. Full-Time Effort. Employee acknowledges and agrees that the
duties and responsibilities to be discharged by Employee require a full-time
effort on the part of Employee, and accordingly, Employee agrees to devote his
full-time effort and resources for and on behalf of Employer, and agrees that he
will not, during the term hereof, enter into (directly or indirectly) any other
business activities or ventures, other than investments which are passive in
nature provided no such investment may exceed 5% of the equity securities of any
entity without the prior approval of the Board.
D. Directives from the Supervisor. In all instances, Employee agrees
to carry out all of his duties and responsibilities as set forth herein pursuant
to the guidance, directives and instructions of the Supervisor and agrees that
at all times his authority shall be subordinate to such Supervisor. The wishes
and directives of the Supervisor shall prevail in all matters and decisions as
to which there is a disagreement between Employee and the Supervisor, and
Employee shall carry out any and all lawful directives from the Supervisor to
the best of his ability.
5. Compensation. As compensation for the services to be rendered by
Employee pursuant to the terms of this Employment Agreement, Employee shall be
entitled to receive the following:
A. a base salary of One Hundred Thousand Dollars ($100,000) per
year, which may be adjusted annually by a merit increase based upon Employer's
existing policy and an annual
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performance appraisal of Employee and Employer and the LLC (the "Base
Compensation"), payable in equal semi-monthly installments;
B. a discretionary bonus in an amount determined in accordance with
Employer's bonus plan (the "Bonus"), which shall not exceed 50% of Employee's
Base Compensation at the time such Bonus is awarded; and
C. the right to participate in any employee stock option or stock
purchase plan that may be adopted by Employer for its executive level employees
and the executive level employees of its gaming subsidiaries (and possibly for
executive level employees of other gaming operations principally owned or
controlled by Xxxx X. Xxxxxx), such participation to be at a level commensurate
with that of other executives performing similar duties and at a similar
compensation level as that of Employee.
6. Fringe Benefits. It is understood and agreed that the Base Compensation
to be received by Employee is to be all-inclusive of other typical fringe
benefits provided to executives in a similar position as Employee; provided,
however, that Employee shall be entitled to the following benefits:
A. reimbursement, on an on-going basis, for all reasonable
entertainment, traveling and other similar expenses incurred in the performance
of his duties and responsibilities hereunder, such expenses to be subject to
budgets established for such purpose and the Employer's reimbursement
procedures;
B. participation in Employer's health coverage plan for Employee and
all members of his immediate family, with such plan and the terms of Employee's
participation in such plan to be on terms and conditions determined solely by
Employer; and
C. participation in such pension plans as Employer shall adopt for
all of its employees; it being understood and agreed that the only pension plan
that Employer has adopted at this time is a Section 401(k) form of pension plan;
and
D. occasional use of a company vehicle as and when needed in
connection with the performance of Employee's duties and responsibilities; and
E. participation in Employer's "Paid Days Off/Vacation" policy.
7. Gaming License. Employer and Employee understand that it may be
necessary for Employee to maintain in full force and effect at all times, gaming
licenses required by various jurisdictions in which subsidiaries or affiliates
of the LLC are conducting gaming operations for persons serving in a similar
capacity as Employee. Accordingly, during the course of his employment, Employee
agrees to use his best efforts to maintain such licenses, to fully cooperate in
the investigation or investigations to be conducted in connection therewith and
otherwise to fully comply with all requirements of applicable Gaming Authorities
and Governmental Authorities.
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8. Termination
A. Termination With Cause. Employer may terminate Employee for
"cause" as provided in this Section 8. For purposes of this Employment Agreement
"cause" means the occurrence of one or more of the following events:
i. the revocation, suspension or failure to renew for a period
in excess of ninety (90) days, of any such gaming license due to an act or
omission of Employee (or such alleged act or omission) upon which the Gaming
Authorities or Governmental Authorities have based their determination to
revoke, suspend or fail to renew any gaming license;
ii. failure or refusal by Employee to observe or perform any
of the material provisions of this Employment Agreement or any other written
agreement with Employer, or to perform in a reasonably satisfactory manner all
of the material duties required of Employee under this Employment Agreement or
any other written agreement with Employer;
iii. commission of fraud, misappropriation, embezzlement or
other acts of dishonesty, or conviction for any crime punishable as a felony or
a gross misdemeanor involving dishonesty or moral turpitude or the use of
illegal drugs while on duty for Employer or on premises of any Facility;
iv. unreasonable refusal or failure to comply with the proper
and lawful directives of and/or procedures established by the Supervisor or the
Board of Directors of Employer (or persons of comparable or senior position);
v. the death of Employee or the mental or physical disability
of Employee to such a degree that Employee, in the reasonable judgment of a
licensed physician retained by Employer, is unable to carry out all of his
obligations, duties and responsibilities set forth herein for a period in excess
of sixty (60) days.
Termination of Employee's employment for cause under
Subsections 8(A)(i), 8(A)(iii) or 8(A)(v) above shall be effective upon notice
thereof by Employer to Employee. Termination of Employee's employment for cause
under Subsections 8(A)(ii) or 8(A)(iv) above shall be effective upon fourteen
(14) days' prior notice thereof by Employer to Employee. The factual basis for
termination for cause shall be included within any such notice of termination.
B. Termination Without Cause. Employer in its discretion may
terminate Employee at any time without cause.
9. Consequences of Termination or Resignation. Upon termination of
Employee's employment with Employer (i) by Employer with or without cause (ii)
upon the resignation of Employee or (iii) upon the expiration of the term of
this Employment Agreement, the following shall apply:
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A. Employee shall be paid his Base Compensation through the
effective date of such termination or resignation; and
B. If Employee is terminated by Employer without cause, Employee
shall continue to receive the Base Compensation for a period of six (6) months
(payable as provided in Subsection 5(A)).
C. The covenants not to compete, solicit or hire and the
confidentiality agreements set forth in Sections 10 and 11 herein below shall
apply in the manner and to the extent set forth herein.
10. Covenants Not to Compete, Solicit or Hire.
A. Covenant Not to Compete. During the term of this Employment
Agreement and for a period of six (6) months from and after the date of
termination of Employee's employment with employer by Employer with or without
cause, upon the resignation of Employee or upon the expiration of the term of
this Employment Agreement, Employee agrees that he will not directly or
indirectly, either as principal, manager, agent, consultant, officer, director,
stockholder, partner, investor, lender or employee, or in any other capacity,
carry on, be engaged in or employed by or be a consultant to or to have any
financial interest in any other casino operation conducting business within one
hundred (100) miles of any gaming facility principally owned or controlled by
Xxxx X. Xxxxxx except those such facilities located in Las Vegas, Reno, Lake
Tahoe and Atlantic City.
B. Covenant Not to Solicit or Hire. During the term of this
Employment Agreement and for a period of one (1) year from and after the date of
termination of Employee's employment with Employer by Employer with or without
cause, upon the resignation of Employee or upon the expiration of the term of
this Employment Agreement, Employee agrees that he will not, directly or
indirectly, hire, retain or solicit, or cause any other employer of his or any
other person who has retained Employee as a consultant or independent contractor
to hire, retain or solicit, as an employee, consultant, independent contractor
in a supervisory capacity or otherwise any person who was at any time during the
period commencing on the date three (3) months prior to the Commencement Date
and ending on the date of the termination of Employee's employment hereunder, an
employee of or consultant or independent contractor in a supervisory capacity to
Employer, the LLC or any other gaming operations principally owned or controlled
by Xxxx X. Xxxxxx.
C. Acknowledgment. Employee acknowledges that he has carefully
considered the nature and extent of the restrictions imposed upon him and the
rights and remedies conferred upon Employer under this Section 10, and Employee
further acknowledges that the same are reasonable in time and scope are fully
required to protect the legitimate interests of Employer and do not confer a
benefit upon Employer disproportionate to any detriment to Employee.
11. Nondisclosure of Confidential Information.
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A. Definition of Confidential Information. For purposes of this
Employment Agreement, "Confidential Information" means any information that is
not generally known to the public that relates to the existing or reasonably
foreseeable business of Employer. Confidential Information includes, but is not
limited to, information contained in or relating to the customer lists, account
lists, price lists, product designs, marketing plans or proposals, customer
information, merchandising, selling, accounting, finances, knowhow, trademarks,
trade names, trade practices, trade secrets and other proprietary information of
Employer.
B. Employee Shall Not Disclose Confidential Information. Employee
will not, during the term of Employee's employment and following the termination
of this Employment Agreement, use, show, display, release, discuss, communicate,
divulge or otherwise disclose Confidential Information to any unauthorized
person, firm, corporation, association or other entity for any reason or purpose
whatsoever, without the prior written consent or authorization of Employer.
Nothing contained herein shall be interpreted or construed as restraining or
preventing Employee from using Confidential Information in the proper conduct of
services to be rendered by Employee on behalf of Employer pursuant to this
Employment Agreement.
C. Scope. Employee's covenant in Subsection 11(B) above not to
disclose Confidential Information shall not apply to information which, at the
time of such disclosure, may be obtained from sources outside of Employer, or
from its agents, lawyers or accountants, so long as those sources did not
receive the information in an improper manner or against the wishes of Employer.
D. Title. All documents and other tangible or intangible property
relating in any way to the business of Employer which are conceived or generated
by Employee or come into Employee's possession during the employment period
shall be and remain the exclusive property of Employer, and Employee agrees to
return immediately to Employer, upon its request, all such documents and
tangible and intangible property, including, but not limited to, all records,
manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,
reports, data, tables, magnetic tapes, computer disks, calculations or copies
thereof, which are the property of Employer and which relate in anyway to the
business, customers, products, practices or techniques of Employer, as well as
all other property of Employer, including but not limited to, all documents
which in whole or in part contain any Confidential Information of Employer which
in any of these cases are in Employee's possession or under Employee's control.
E. Compelled Disclosure. In the event a third party seeks to compel
disclosure of Confidential Information by Employee by judicial or administrative
process, Employee shall promptly notify Employer of such occurrence and furnish
to Employer a copy of the demand, summons, subpoena or other process served upon
Employee to compel such disclosure, and will permit Employer to assume, at its
expense, but with Employee's cooperation, defense of such disclosure demand. In
the event that Employer refuses to contest such a third party disclosure demand
under judicial or administrative process, or a final judicial judgment is issued
compelling Employee to disclose Confidential Information, Employee shall be
entitled to disclose such information in compliance with the terms of such
administrative or judicial process or order.
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12. Representations and Warranties.
Employee hereby represents and warrants to Employer that:
A. the execution, delivery and performance by Employee of this
Employment Agreement will not conflict with, violate the terms of or create a
default under any other agreement by which Employee is bound, including without
limitation Employee's present employment or similar agreements, whether oral or
written;
B. no Gaming Authority or other Governmental Authority has ever
denied or otherwise declined to issue any gaming license or related
authorization applied for by Employee;
C. Employee is not aware of any facts which, if known to any Gaming
Authority, or other Governmental Authority, would cause the refusal of his
application for, or renewal of, any gaming licenses;
D. Employee is not aware of any mental, physical or emotional
condition which currently affects Employee, and which might result in Employee's
being unable to carry out all of his duties, obligations and responsibilities
set forth herein;
E. Employee understands and agrees that Employer is entering into
this Employment Agreement in strict reliance upon the representations and
warranties of Employee set forth herein, and that a breach of any of said
representations and warranties by Employee would constitute a default hereunder;
and
F. Employee has received and reviewed Employer's "Paid Days
Off/Vacation" policy and understands its terms.
13. Entire Agreement. This Employment Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter set forth
herein, and supersedes any and all previous oral or written agreements,
understandings or discussions between the parties hereto with respect to the
subject matter set forth herein with respect to the employment of Employee.
14. All Amendments in Writing. This Employment Agreement may not be
amended orally, but only pursuant to a written instrument executed by Employer
and Employee and it shall not be reasonable for either Employer or Employee to
rely on any oral statements or representations by the other party that are in
conflict with the terms of this Employment Agreement.
15. Arbitration. In the event of any dispute or controversy between
Employer and Employee with respect to any of the matters set forth herein, both
Employer and Employee agree to submit such dispute or controversy to binding
arbitration, to be conducted in Las Vegas, Nevada pursuant to the then
prevailing rules and regulations of the American Arbitration Association. In
such arbitration, the prevailing party shall be entitled, in addition to any
award made in such proceeding, to recover all of its costs and expenses incurred
in connection therewith, including,
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without limitation, attorneys' fees. This provision does not in any way affect
Section 23 of this Employment Agreement.
16. Governing Law. This Employment Agreement shall be governed and
construed in accordance with the internal laws of the State of Nevada.
17. Notices. Any notice required or permitted to be given in connection
with this Employment Agreement shall be given by either: (a) depositing the same
in the United States Mail, postage prepaid, registered or certified, return
receipt requested; or (b) by depositing it with a recognized overnight courier
service for delivery the following day to the other party; or (c) by facsimile
transmission, provided the other party acknowledges receipt of such
transmission. All such notices shall be deemed received as of the date of
acknowledgment of receipt by the other party. All such notices shall be
addressed to the parties at the following addresses, or to such other address as
may be provided from time to time by one party to the other:
If to Employer: Horseshoe Gaming, Inc.
000 X. Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
If to Employee: Mr. Xxxx Xxxxx
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18. Assignment. This Employment Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, successors,
administrators and assigns. Notwithstanding the foregoing, Employee understands
and agrees that the nature of this Employment Agreement is a personal services
agreement, and that Employer is entering into this Employment Agreement based
upon the specific services to be rendered personally by Employee hereunder; and
accordingly, Employee shall not assign, transfer or delegate in any manner any
of his duties, responsibilities or obligations hereunder.
19. No Third Party Beneficiaries. This Employment Agreement is solely for
the benefit of Employer and Employee, and in no event shall any other person or
entity by deemed or construed as a third party beneficiary of any of the
provisions or conditions set forth herein.
20. Waiver. No waiver of any term, condition or covenant of this
Employment Agreement by a party shall be deemed to be a waiver of any subsequent
breaches of the same or other terms, covenants or conditions hereof by such
party.
21. Construction. Whenever possible, each provision of this Employment
Agreement shall be interpreted in such manner as to be effective or valid under
applicable law, but if any provision of this Employment Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
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invalidating the remainder of such provision or the remaining provisions of this
Employment Agreement. Without limiting the generality of the foregoing, if any
court determines that the term or the business or geographic scope of the
covenants contained in Subsections 10(A) or 10(B) is impermissible due to the
extent thereof, said covenant shall be modified to reduce its term, business or
geographic scope, as the case may be, to the extent necessary to make such
covenant valid, and said covenant shall be enforced as modified.
22. Withholding. Employer shall withhold from any payments due to Employee
hereunder, all taxes, FICA or other amounts required to be withheld pursuant to
any applicable law.
23. Injunctive Relief. Employee and Employer each acknowledge that the
provisions of Sections 10 and 11 are reasonable and necessary, that the damages
that would be suffered as a result of a breach or threatened breach by Employee
of Sections 10 and/or 11 may not be calculable, and that the award of a money
judgment to Employer for such a breach or threatened breach thereof by Employee
would be an inadequate remedy. Consequently, Employee agrees that in addition to
any other remedy to which Employer may be entitled in law or in equity, the
provisions of Sections 10 and 11 may be enforced by Employer by injunctive or
other equitable relief, including a temporary and/or permanent injunction
(without proving a breach therefor), and Employer shall not be obligated to post
bond or other security in seeking such relief. Employee hereby waives any and
all objections he may have and consents to the jurisdiction of any state or
federal court located in the State of Nevada or Mississippi and hereby waives
any and all objections to venue.
25. Counterparts. This Employment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
together shall constitute a single instrument.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the day and year first above written.
"EMPLOYER" HORSESHOE GAMING, INC.
a Nevada Corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Chief Executive Officer
"EMPLOYEE" /s/ Xxxx Xxxxx
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Xxxx Xxxxx
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EXHIBIT A
DEFINITIONS
All capitalized terms referenced or used in this Employment Agreement and
not specifically defined therein shall have the meaning set forth below in this
Exhibit A, which is attached to and made a part of this Employment Agreement for
all purposes.
Gaming Authorities. The term "Gaming Authorities" shall mean all agencies,
authorities and instrumentalities of any state, nation (including Native
American nations) or other governmental entity or any subdivision thereof,
regulating gaming or related activities in the United States or any state or
political subdivision thereof, including, without limitation, the Mississippi
and Louisiana Gaming Commissions.
Governmental Authority. The term "Governmental Authority" means the
governments of (i) the United States of America, (ii)the State of Mississippi,
(iii) Tunica County, (iv) the State of Louisiana, (v) Bossier City, Louisiana
and (vi) any other political subdivision of any state of the United States in
which a casino Facility is located, and any court or political subdivision,
agency, commission, board or instrumentality or officer thereof, whether
federal, state or local, having or exercising jurisdiction over Employer or a
Facility, and including, without limitation, any Gaming Authority.
Governmental Requirements. The term "Governmental Requirements" means all
laws and agreements with any Governmental Authority that are applicable to the
acquisition, development, construction and/or operation of a Facility including,
without limitation, all required permits, approvals and any rules, guidelines or
restrictions created or imposed by any Governmental Authority (including,
without limitation, any Gaming Authority).
