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EMPLOYMENT AGREEMENT
AGREEMENT dated as of June 1, 1995, by and between
Interstate General Properties Limited Partnership S.E., a
Maryland Limited Partnership (the "Company") and Xxxx Xxxxxx
Xxxxxx (the "Executive"), a resident of Puerto Rico.
Whereas, pursuant to a consulting agreement dated
December 15, 1993 (the "Consulting Agreement") the Company
provides certain consulting services to El Comandante
Operating Company Inc. ("ECOC"); and
Whereas, ECOC is the lessee and operator of the El
Comandante Race Track in Canovanas, Puerto Rico ("El
Comandante") pursuant to a lease agreement dated December 15,
1993 with Housing Development Associates S.E. ("HDA"); and
Whereas, the Company is a managing partner of HDA
and serves as HDA's management agent pursuant to a Management
Agreement dated December 15, 1993; and
Whereas, Interstate General Company L.P. ("IGC")
owns 100% of the partnership interests of the Company; and
Whereas, Equus Gaming Company L.P. ("Equus") owns an
82% profits interest in HDA; and
Whereas, IGC provides certain administrative and
support services to Equus pursuant to a Master Support and
Services Agreement dated December 9, 1994 (the "Support
Agreement"); and
Whereas, Executive is currently an employee of the
Company and officer of IGC and since December 15, 1993 has
provided services to ECOC pursuant to the Consulting
Agreement; and
Whereas, the Company and IGC wish to expand
Executive's responsibilities to include providing certain
services to Equus pursuant to the Support Agreement;
IN CONSIDERATION OF THE PREMISES and for other good
and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
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1. Employment. The Company shall employ the
Executive and the Executive hereby agrees to serve the
Company, on the terms and conditions set forth herein. The
Executive represents and warrants that neither the execution
by him of this Agreement nor the performance by him of his
duties and obligations hereunder will violate any agreement to
which he is a party or by which he is bound.
2. Term. The Company shall employ the Executive
and the terms and conditions of this Agreement shall extend
for an initial term commencing on June 1, 1995 and expiring on
May 31, 1998, and thereafter for successive one-year terms
provided, however, that either party may terminate this
Agreement ninety (90) days after such party has delivered
written notice to the other party of its intent so to
terminate this Agreement.
3. Position and Duties. The Executive shall
continue to serve as Senior Vice President of the Company and
IGC and shall serve as Executive Vice President of Equus. The
Executive shall have such authority and responsibilities as
shall be set forth in Exhibit A attached hereto captioned "Job
Description and Delegation of Authority" as the same may be
amended from time to time by the President or the Board of
Directors (the "Board") of the Managing General Partner of
IGC.
4. Place of Performance. In connection with this
employment by the Company, the Executive shall be based at
ECOC's principal executive offices which, as of the date of
this Agreement, are located in Canovanas, Puerto Rico.
5. Compensation.
(a) Base Salary. The Executive shall receive a
Base Salary commencing as of June 1, 1995 at the rate of
$180,000 per year, payable in substantially equal semi-monthly
installments.
(b) Benefit Plans. The Executive shall be eligible
to participate in such benefit plans as may be established
from time to time by the Company on the same basis as
comparable senior executive employees of the Company. Any
discretionary benefits under such plans shall be at the full
discretion and determination of the Board.
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(c) Expenses. During the term of his employment
hereunder, the Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him (in
accordance with the policies and procedures presently in
effect for the Company's senior executive officers) in
connection with his services herein. The Executive shall
account to the Company for such expenses in accordance with
Company policy.
(d) Vacations. The Executive shall be entitled to
the number of paid vacation days determined by the Company for
its senior executive officers, which shall in any event be no
less than 4 weeks per year. The Executive shall also be
entitled to all paid holidays given to the Company's senior
executive officers.
(e) Certain Specified Benefits. In addition to
benefits to which the Executive is eligible under subsection
(b) of this section, the Company shall provide for the
Executive's business use a suitable automobile, together with
payment of the cost of maintenance, insurance and operating
expenses thereof, and the Executive shall be entitled to
receive bonuses determined in accordance with the Bonus Plan
set forth on Exhibit B attached hereto (collectively the
"Specified Benefits").
6. Withholding. Anything in this Agreement to the
contrary notwithstanding, all payments required to be made by
the Company hereunder to the Executive or his estate or
beneficiaries shall be subject to the withholding of such
amounts relating to taxes as the Company may reasonably
determine it should withhold pursuant to any applicable law or
regulation. In lieu of withholding such amounts, in whole or
in part, the Company may, in its sole discretion, accept other
provisions for payment of taxes and withholdings as required
by law, provided it is satisfied that all requirements of law
affecting its responsibilities to withhold compensation have
been satisfied.
7. Unauthorized Disclosure. During the period of
his employment hereunder, and for a period of three (3) years
thereafter, the Executive shall not, without the written
consent of the Board or a person authorized by the Board,
disclose to any person other than as required by law or court
order, or other than to an authorized employee of the Company
or its Affiliates, or to a person to whom disclosure is
necessary or appropriate in connection with the performance by
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the Executive of his duties as an executive of the Company
(e.g., disclosure to the Company's or its Affiliates' outside
accountants or bankers of financial data properly requested by
such persons and approved by an authorized officer of the
Company), any confidential information obtained by him while
in the employ of the Company with respect to any of ECOC's,
Equus', HDA's, the Company's or any of their respective
Affiliates' products, services, customers, suppliers,
marketing techniques, methods or future plans; provided,
however, that confidential information shall not include any
information known generally to the public (other than as a
result of unauthorized disclosure by the Executive) or any
information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to
that conducted by the Company. The Executive shall be allowed
to disclose confidential information to his attorney solely
for the purpose of ascertaining whether such information is
confidential within the intent of this Agreement; provided,
however, that the Executive (a) discloses to his attorney the
provisions of this Section 7 and (b) agrees not to waive the
attorney-client privilege with respect thereto.
8. Non-Competition.
(a) While the Executive is employed by the Company
hereunder, the Executive shall use his best efforts to make
available to Equus business opportunities in the thoroughbred
racing and gaming industry that come to his attention or to
the attention of persons (other than natural persons) under
his control.
(b) While the Executive is employed by the Company
hereunder and for a period of two (2) years thereafter (the
"Non-Compete Period"), the Executive agrees that he shall not
compete with ECOC, Equus, HDA, the Company or any of their
respective Affiliates without the prior written consent of the
Board. For purposes of this Agreement, the term "compete"
shall mean (i) participating as a more than five (5%) percent
stockholder, an officer, a director, an employee, a partner,
an agent, a consultant, or in any other individual or
representative capacity in any business entity engaged in the
business of thoroughbred racing operations or management or
legalized gaming in the Caribbean, Central America or South
America during the Non-Compete Period; or (ii) employing or
soliciting for employment any employees of ECOC, Equus, HDA,
the Company or any of their respective Affiliates.
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(c) In the event the restrictions against engaging
in a competitive activity contained in this Section 8 shall be
determined by any court of competent jurisdiction to be
unenforceable by reason of their extending for too great a
period of time or over too great a geographical area or by
reason of their being too extensive in any other respect, this
Section 8 shall be interpreted to extend only over the maximum
period of time for which it may be enforceable and over the
maximum geographical area as to which it may be enforceable
and to the maximum extent in all other respects as to which it
may be enforceable, all as determined by such court in such
action.
(d) The Executive acknowledges that a breach of the
restrictions against engaging in a competitive activity
contained in this Section 8 will cause irreparable damage to
the Company, Equus, HDA, or any of their respective
Affiliates, the exact amount of which will be difficult to
ascertain, and that the remedies at law for any such breach
will be inadequate. Accordingly, the Executive and the
Company agree that if the Executive breaches the restrictions
against engaging in a competitive activity contained in this
Section 8, then the Company, Equus, HDA or any of their
respective Affiliates shall be entitled to equitable relief,
including but not limited to injunctive relief, without
posting bond or other security.
9. Termination. Upon termination of the
Executive's employment hereunder, all payment and benefit
obligations of the Company hereunder shall immediately
terminate except as follows:
(a) In the event of a termination by the Executive,
whether voluntarily or due to the Executive's death or
disability, the Executive, or his estate, shall continue to
receive his Base Salary and benefits (excluding the Specified
Benefits) for which the Executive would remain eligible under
the terms of the Company's benefit plans (collectively
"Severance Compensation"), for a period commencing on the
effective date of the Executive's termination determined by
the Board (the "Termination Date") and ending six months
following the Termination Date;
(b) In the event of a Qualifying Termination
(defined below) by the Company, the Executive shall receive
Severance Compensation for a period commencing on the
Termination Date and ending six months following the
Termination Date;
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(c) For purposes of this Agreement, "Qualifying
Termination" shall mean any termination of the Executive by
the Company other than a termination approved by the Board
arising from the Executive's (1) willful, reckless or
negligent inattention to the welfare of the Company,
(2) unethical conduct, (3) repeated disregard of the Company's
written rules, policies and regulations, (4) conviction of a
felony or other criminal offense relating to fraud or theft or
(5) failure or refusal by the Executive to perform his
obligations under this Agreement, including any lawful
directive of the Board, Chairman of the Board or President
relating to the business of the Company or its Affiliates.
10. Notices. For purposes of this Agreement,
notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been
duly given when delivered by hand or facsimile transmission or
when received by United States registered or certified mail,
return receipt requested, postage prepaid, addressed as
follows:
If to the Company:
Interstate General Properties Limited
Partnership
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Building, 7th Floor
Hato Rey, Puerto Rico 00918
Attention: President, Managing Partner
If to the Executive:
Xx. Xxxx Xxxxxx Xxxxxx
Palma Sola X-X-00
Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
or to such other address as either party may have furnished to
the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon
receipt.
11. Entire Agreement. This Agreement constitutes
the entire agreement between the parties hereto with respect
to the transactions contemplated herein, and supersedes all
prior oral or written agreements, commitments or
understandings with respect to the matters provided for
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herein.
12. Headings. The recitals and section headings
contained in this Agreement are inserted for convenience of
reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the
provisions hereof.
13. Validity. The invalidity or unenforceability
of any provision or provisions of this Agreement shall not
affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and
effect.
14. Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes
relating thereto, shall be governed by and construed in
accordance with the laws of the State of Maryland (excluding
the choice-of-law rules thereof).
15. Miscellaneous. Except as provided in Section
16 below, no provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by the Executive and
such officer or director as may be specifically designated by
the Board. No waiver by either party hereto at any time of
any breach by the other party so chosen.
16. Assignment. Without consent of the Executive,
the Company may assign the benefits and obligations under this
Agreement to any Affiliate. Such assignment shall be binding
upon the Executive and shall discharge the Company of its
obligations hereunder.
17. Arbitration.
(a) Any dispute or controversy arising between the
Executive and the Company relating to this Agreement shall be
submitted to private, binding arbitration, upon the written
request of either the Executive or the Company, before a panel
of three arbitrators, under the auspices of and in accordance
with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). In the event of such dispute
or controversy, the Company and the Executive shall
independently and simultaneously select one arbitrator each,
both of whom must have no past or present familial or business
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relationships with the parties and must possess expertise in
the area of compensation of senior management employees.
These two arbitrators shall jointly agree upon and select a
third arbitrator who also possesses such credentials. These
three arbitrators shall hear and decide the dispute or
controversy by majority vote, and their decision and award
shall be final and conclusive upon the parties, and their
heirs, administrators, executors, successors, and assigns.
The arbitrators shall have no power or authority to add to,
subtract from, or otherwise modify the terms of this
Agreement. Wherever the Commercial Arbitration Rules of the
AAA conflict with the procedures set forth in this section,
the terms of this section shall govern. The Executive and the
Company agree that the arbitration must be initiated by
personally delivering a statement of claim to the AAA and to
the party against whom the claim is asserted no later than
ninety (90) days after the basis of the claim becomes known,
or reasonably should have been known or discovered, by the
party asserting the claim. In the event arbitration is not
initiated within such ninety (90) day period, such claim,
dispute, or controversy shall be irrevocably time-barred. A
judgment based upon such arbitration award may be entered in
any court having jurisdiction thereof.
(b) Notwithstanding the foregoing, any action
brought by the Company seeking a temporary restraining order,
temporary and/or permanent injunction, and/or a decree of
specific performance of the terms of this Agreement may be
brought in a court of competent jurisdiction without the
obligation to proceed first to arbitration.
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IN WITNESS WHEREOF, the parties have executed this
Agreement on the date and year first above written.
INTERSTATE GENERAL PROPERTIES LIMITED
PARTNERSHIP, S.E.
By: Interstate General Company,
L.P.,
its Managing Partner
By: Interstate General Management
Corporation,
its Management Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXX XXXXXX XXXXXX
/s/ Xxxx Xxxxxx Xxxxxx
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Exhibit B
BONUS PLAN
Subject to the prorations set forth below, the
Executive shall be entitled to an annual bonus equal to .33
percent of the cumulative amount of Basic Rent payable by ECOC
to HDA during 1995 and each year thereafter pursuant to that
certain Amended and Restated Lease Agreement dated December
15, 1993. Such bonus shall be payable on or before April 30,
1996 and each year thereafter with respect to Basic Rent paid
by ECOC during the preceding year.
In the event Executive's employment or this
Agreement is terminated prior to completion of any year, the
bonus for such year shall be prorated based on the number of
days elapsed in such year prior to the date of such
termination.
