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EXHIBIT 10.17
AGREEMENT
Agreement dated as of December 31, 1998 (this "Agreement"), by and among
Horseshoe Gaming, Inc., a Nevada corporation (the "Company"), Horseshoe Gaming,
LLC, a Delaware limited liability company (the "LLC"), and Hollywood Park, Inc.,
a Delaware corporation ("Hollywood Park").
R E C I T A L S :
WHEREAS, pursuant to an Employment Agreement dated as of January 1,
1996, by and between Xx. Xxxx X. Xxxxxx ("Xxxxxx") and the Company (the "Alanis
Employment Agreement"), Alanis has served as President of the Company;
WHEREAS, pursuant to an Employment Agreement dated as of October 1,
1995, by and between Xx. Xxxx X. Xxxxx ("Xxxxx") and the Company (the "Xxxxx
Employment Agreement"), Xxxxx has served as Senior Vice President-Operations of
the Company;
WHEREAS, pursuant to an Employment Agreement dated as of December 1,
1995, by and between Xx. Xxxxx Xxxxxxx ("Xxxxxxx") and the Company (the "Xxxxxxx
Employment Agreement"), Xxxxxxx has served as Vice President-Design and
Development of the Company;
WHEREAS, pursuant to an Employment Agreement dated as of January 1,
1996, by and between Xx. Xxxxx X. Xxxxxx ("Xxxxxx" and together with Xxxxxx,
Xxxxx and Xxxxxxx being collectively referred to herein as the "Employees") and
the Company (the "Xxxxxx Employment Agreement" and together with the Alanis
Employment Agreement, the Xxxxx Employment Agreement and the Xxxxxxx Employment
Agreement being collectively referred to herein as the "Employment Agreements"
and individually as an "Employment Agreement"), Xxxxxx has served as Senior Vice
President and General Counsel of the Company;
WHEREAS, the Company acts as Manager of the LLC, which is governed by
the Limited Liability Company Operating Agreement dated October 1, 1995 (the
"LLC Agreement");
WHEREAS, the LLC is the owner of Horseshoe Entertainment, a Louisiana
limited partnership ("HE"), which owns and operates Horseshoe Bossier City
Casino located in Bossier City, Louisiana, and Xxxxxxxx Property Group Limited
Partnership, a Mississippi limited partnership ("RPG"), which owns and operates
the Horseshoe Hotel and Casino located at Casino Center in Tunica County,
Mississippi (the LLC, HE and RPG and their respective subsidiaries and
affiliates are herein sometimes referred to as the "Horseshoe Companies");
WHEREAS, the LLC is party to an agreement pursuant to which it may
acquire the gaming operations of Empress Entertainment, Inc., a Delaware
corporation, and its subsidiaries Empress Casino Hammond Corporation, an Indiana
corporation, and Empress Casino Joliet Corporation
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(collectively, "Empress") in Hammond, Indiana and Joliet, Illinois, and the
Employees were intimately involved in the decision to acquire Empress and in
negotiating the acquisition agreement;
WHEREAS, each of the Employees has entered into a contractual
arrangement with Hollywood Park to commence employment with Hollywood Park upon
the expiration of the term of his respective Employment Agreement, which in the
case of Alanis is December 31, 1998; in the case of Xxxxx is May 11, 1999; in
the case of Xxxxxxx is November 30, 1998; and in the case of Xxxxxx is December
31, 1998;
WHEREAS, the Company has claimed that (i) Hollywood Park has tortiously
interfered with the Company's respective contractual relationship with each of
the Employees and (ii) the Employees have breached their fiduciary duties to the
Company and are subject to termination for "cause";
WHEREAS, Hollywood Park and the Employees have denied the Company's
claims; and
WHEREAS, the Company, the Horseshoe Companies and Hollywood Park desire
to avoid litigation over the claims of the Company and the LLC against Hollywood
Park.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements contained herein, and for other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
TERMINATION OF THE EMPLOYMENT AGREEMENTS
I.1 Termination. The Company, on the date of this Agreement (the
"Termination Date"), is terminating the Employees from any and
all positions they have held with the Company, the Horseshoe
Companies and any of their respective subsidiaries and
affiliates.
I.2 Employment Opportunities. The Company agrees that the Employees
may pursue employment opportunities with Hollywood Park and
perform their obligations under their respective agreements with
Hollywood Park at any time after the date hereof.
The Company will not assert the non-competition provisions of the
Employment Agreements against the Employees or Hollywood Park.
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ARTICLE II
NON-SOLICITATION AND NON-HIRE
II.1 Non-Solicitation and Non-Hire.
(a) Hollywood Park agrees that from the Termination Date until
December 31, 2001, it will not directly or indirectly
solicit, hire or retain, as an employee, consultant,
independent contractor or otherwise any of the persons
whose names are contained on the Protected List attached
hereto as Exhibit A and by this reference made a part
hereof.
(b) In the event Hollywood Park violates any legally
enforceable provision of this Article II as to which there
is a specific time period during which Hollywood Park is
prohibited from taking certain actions or engaging in
certain activities, then the violation will toll the
running of the time period from the date of violation
until the violation ceases as to the specific employee as
to which a violation is alleged but not as to other
employees whose names are on the Protected List.
(c) Hollywood Park acknowledges that it has carefully
considered the nature and extent of the restrictions upon
it and the rights and remedies conferred upon the Company
and the Horseshoe Companies under this Article II.
Hollywood Park further acknowledges that the same are
reasonable in time and territory and are fully required to
protect the legitimate interests of the Company and the
Horseshoe Companies and do not confer a benefit upon the
Company and the Horseshoe Companies disproportionate to
any detriment to Hollywood Park.
II.2 Remedies. Hollywood Park and the Company acknowledge that the
provisions contained in this Article II are reasonable and
necessary, that the damages which would be suffered by the
Company and the Horseshoe Companies as a result of a breach or
threatened breach by Hollywood Park of any of such provisions may
not be calculable, and that the award of a money judgment to the
Company and the Horseshoe Companies for such a breach or
threatened breach by Hollywood Park would be an inadequate
remedy. Consequently, Hollywood Park agrees that any breach or
threatened breach of any provision of this Article II may be
enforced by the Company and/or the Horseshoe Companies by means
of an action for injunctive or other equitable relief, including
a temporary and/or permanent injunction, filed in a court of
competent jurisdiction. Any such remedy shall be in addition, and
shall not limit the right of the Company or the Horseshoe
Companies, to any other remedy to which it may be entitled in law
or in equity. Due to the financial strength of the
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Company and the Horseshoe Companies, Hollywood Park agrees that
it is not necessary for the Company or the Horseshoe Companies to
post a bond and that they shall not be obligated to post a bond
or other security in seeking such relief. Hollywood Park hereby
waives any right to seek a bond. In connection with the remedies
provided in this Section 2.2, Hollywood Park hereby waives any
objection and consents to the subject matter and personal
jurisdiction of the state and federal courts of the State of
Nevada and hereby waives any and all objections to venue.
ARTICLE III
RELEASE; NON-DISCLOSURE
III.1 Release.
(1) Hollywood Park hereby releases and forever discharges the
Company, the Horseshoe Companies and each of their
respective past, present and future subsidiaries,
affiliates, officers, directors, employees, agents,
stockholders, partners, managers, members, successors and
assigns, both individually and in their official
capacities with the Company, the Horseshoe Companies or
any subsidiaries or affiliates of any of them as
applicable (collectively, the released parties are herein
referred to as the "Horseshoe Released Parties"), of and
from any and all actions or causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds,
bills, covenants, claims, charges, complaints, contracts,
agreements, trespasses, damages, judgments, commissions,
executions, demands and promises whatsoever, in law or
equity, which Hollywood Park, or its successors or
assigns, may now have or hereafter can, shall or may have
against the Horseshoe Released Parties, for, upon, or by
reason of any and all matters arising out of or relating
to (i) the cessation of Employee's employment by the
Company, including the termination of the Employment
Agreements; and (ii) the expected employment of the
Employees by Hollywood Park; provided, however, that
notwithstanding any of the foregoing provisions of this
release, Hollywood Park hereby expressly reserves any
rights, claims, or causes of action it may have arising
out of or resulting from the non-performance or breach of
the terms and conditions of this Agreement by the Company
or the Horseshoe Companies. Hollywood Park is aware that
it is releasing claims as to which it may be currently
unaware and only may come to learn, but is nevertheless
willing to enter into this release. It is the intention of
Hollywood Park that, notwithstanding the possibility that
Hollywood Park or its' counsel might discover or gain a
more complete understanding of the facts, events or law
which, if presently known or fully understood, would have
affected this release, this release shall be deemed to
have fully, finally and forever settled
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any and all claims without regard to the existence or
subsequent discovery of different or additional facts,
events or laws.
(2) Each of the Company and the Horseshoe Companies hereby
releases and forever discharges Hollywood Park and its'
past, present and future subsidiaries, affiliates,
officers, directors, employees, agents, stockholders,
partners, members, successors, and assigns, both
individually and in their official capacities with
Hollywood Park, or any subsidiaries or affiliates of any
of them as applicable, of and from any and all actions or
causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, covenants, claims,
charges, complaints, contracts, agreements, trespasses,
damages, judgments, commissions, executions, demands and
promises whatsoever, in law or equity, which the Company
or the Horseshoe Companies, or its successors or assigns,
may now have or hereafter can, shall or may have against
Hollywood Park, for, upon, or by reason of any and all
matters arising out of or relating to (i) the cessation of
Employee's employment by the Company, including the
termination of the Employment Agreements; (ii) the
expected employment of the Employees by Hollywood Park,
including any solicitation or purported solicitation of
the Employees to enter into such employment agreements
with Hollywood Park; (iii) the effect of the Hollywood
Park Press Release dated September 11, 1998 entitled "Four
Top Executives of Horseshoe Gaming Agree to Join Hollywood
Park" (the "Press Release") and other statements made by
Hollywood Park which are consistent with the Press
Release; and (iv) any solicitation, actual or alleged, of
any other employees of the Company and/or any of its
affiliated entities, occurring prior to the execution of
this Agreement; provided, however, that notwithstanding
the foregoing provisions of this release, the Company and
the Horseshoe Companies hereby expressly reserve any
rights, claims, or causes of action they may have against
Hollywood Park arising out of or resulting from the
non-performance or breach of the terms and conditions of
this Agreement. Each of the Company and the Horseshoe
Companies is aware that it is releasing claims as to which
it may be currently unaware and only may come to learn,
but are nevertheless willing to enter into this release.
It is the intention of the Company and the Horseshoe
Companies that, notwithstanding the possibility that the
Company, the Horseshoe Companies or their counsel might
discover or gain a more complete understanding of the
facts, events or law which, if presently known or fully
understood, would have affected this release, this release
shall be deemed to have fully, finally and forever settled
any and all claims without regard to the existence or
subsequent discovery of different or additional facts,
events or laws.
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(3) Each of Hollywood Park, the Company and the Horseshoe
Companies as a Releasor hereby waives the provisions of
Section 1542 of the California Civil Code only to the
extent it applies to the releases given by such Releasor
in this Section 3.1. Section 1542 of the California Civil
Code provides as follows:
A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him must have materially affected
his settlement with the debtor.
III.2 Disclosure of Agreement. The existence and substance of this
Agreement may be disclosed to any person or organization as the
party disclosing determines, including, without limitation, the
parties' legal counsel and accountants, present and former
employees and affiliates of the Company, the Horseshoe Companies,
Hollywood Park and persons providing financing to the Company,
the Horseshoe Companies, or any of their respective affiliates.
Disclosure of the existence and substance of this Agreement also
may be made to the public as required by law and as otherwise may
reasonably be determined by the disclosing party in the
furtherance of its business interests.
III.3 Knowledge and Consent of the Parties. The parties hereby mutually
warrant and represent that they have read and understand this
Agreement and that this Agreement is executed voluntarily and
without duress or undue influence on the part of or on behalf of
any party hereto. The parties hereby acknowledge that they have
been represented in negotiations and for the preparation of this
Agreement by counsel of their own choice; that they have read
this Agreement; and that they are fully aware of the contents of
this Agreement and of the legal effect of each and every
provision hereof. It is acknowledged and agreed by each party to
this Agreement that each party has participated in the drafting
of this Agreement and that any claimed ambiguity should not be
construed for or against any such party on account of such
drafting.
ARTICLE IV
MISCELLANEOUS
IV.1 Notice. All notices, requests, demands and other communications
required or permitted hereunder, shall be in writing and shall be
deemed to have been duly given when received. Notice shall be
delivered either by hand, facsimile or mailed, certified mail,
return receipt requested with postage prepaid, addressed to the
parties
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at the following addresses, or such other address as may be
designated by notice in accordance with the provisions of this
Section:
(1) If to the Company or the Horseshoe Companies:
0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx
(2) If to Hollywood Park:
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: X. X. Xxxxxxx
XX.2 Entire Agreement; Further Assurances. This Agreement constitutes
the entire agreement between the parties hereto with respect to
the specific subject matter herein and supersedes all prior
agreements and undertakings, both written and oral, with respect
to the specific subject matter hereof. Each of the parties hereto
mutually agrees to deliver all such other documents and to do and
perform all such other acts as may reasonably be required from
time to time in connection with this Agreement or to implement or
carry out the terms hereof.
IV.3 Severability. If any provision (or portion hereof) of this
Agreement would be deemed to be invalid or unenforceable for any
reason, including, without limitation, the geographic or business
scope or the duration thereof, such provision (or portion
thereof) shall be construed in such a way as to make it valid and
enforceable to the maximum extent possible. Any invalidity or
unenforceability of any provision (or portion thereof) of this
Agreement shall attach only to such provision (or portion
thereof) and shall not affect or render invalid or unenforceable
any other provision (or portion thereof) of this Agreement or any
other agreement or instrument.
IV.4 Amendment. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by
a written instrument signed by each of the parties hereto, and it
shall not be reasonable for any party to rely on any oral
statements or representations made by any other party.
IV.5 Arbitration. In the event of any dispute or controversy between
the parties with respect to any of the matters set forth herein,
such dispute or controversy shall be
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submitted to binding arbitration, to be conducted in Las Vegas,
Nevada, pursuant to the then prevailing rules and regulations of
the American Arbitration Association. This provision does not, in
any way, affect Section 2.2 of this Agreement.
IV.6 Admission; Evidence. The execution of this Agreement shall not be
deemed an admission of any wrongdoing, liability or unlawful
conduct on the part of Hollywood Park, the Horseshoe Companies
and/or the Company, its affiliates, divisions, officers,
employees, agents, successors or assigns. Neither this Agreement
nor any portion hereof shall be admissible evidence in any
proceeding whatsoever involving any party other than the Company,
the Horseshoe Companies, Hollywood Park or their respective
representatives or successors hereto.
IV.7 Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, the Company, the Horseshoe Companies and
Hollywood Park, and their respective successors and permitted
assigns under Section 4.8.
IV.8 Assignment. This Agreement may not be assigned by the parties
hereto other than, in the case of each party that is an entity,
to a successor to the business of such party or the purchaser of
all or substantially all of its assets; provided, that such
successor or purchaser shall have agreed to assume all of the
transferring party's obligations under this Agreement.
IV.9 Waiver. No waiver of any term or condition of this Agreement
shall be construed as a waiver of any other term or condition;
nor shall the waiver of any default under this Agreement be
construed as a waiver of any other default; nor, unless otherwise
provided in this Agreement as to timing, shall any delay or
omission of any party to exercise any right hereunder in any
manner waive such right or impair the exercise of such right
thereafter.
XX.00 Xxxxxxxx. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
IV.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be
an original, but all of which when taken together shall
constitute one and the same agreement.
IV.12 Legal Fees. Each party to this Agreement agrees to be solely
responsible for its respective legal fees and disbursements and
other expenses in connection with the negotiation and preparation
of this Agreement and in connection with any disputes, claims,
litigation and other matters relating to this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
HORSESHOE GAMING, INC.
a Nevada corporation
By: ____________________________________
Xxxx X. Xxxxxx
Chief Executive Officer
HORSESHOE GAMING, LLC.
a Delaware limited liability company
By: Horseshoe Gaming, Inc., Manager
By: ____________________________________
Xxxx X. Xxxxxx
Chief Executive Officer and
Chairman of the Board
HOLLYWOOD PARK, INC.
a Delaware corporation
By: ____________________________________
X. X. Xxxxxxx
Chairman and Chief Executive Officer
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