Exhibit 10.1
AGREEMENT
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This AGREEMENT is made as of the 1st day February 1999, by and between
PRESIDENT CASINOS, INC., a Delaware corporation (the "Company"), and XXXXX X.
XXXXXXXX ("Executive").
W I T N E S S E T H:
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WHEREAS, Executive has previously served the Company on an at-will basis;
and
WHEREAS, Executive is willing to serve the Company on a full-time
employment basis in the capacity of Vice President of Finance during the term
hereof, subject to the terms and conditions hereinafter set forth; and
WHEREAS, the Company has determined that the future services of Executive
will be of value to the Company.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, it is agreed as follows:
1. EMPLOYMENT. The Company hereby employs Executive, and Executive hereby
accepts employment from the Company, upon the terms and conditions hereinafter
set forth. Executive acknowledges and agrees that consideration for his
agreement to be legally bound by the confidentiality and non-competition terms
and conditions set forth in this Agreement is the Company's obligation herein
to employ Executive for a definite term and be bound by the other terms and
conditions of this Agreement.
2. TERM OF EMPLOYMENT. The term of this Agreement shall commence as of
February 1, 1999 (the "Commencement Date") and shall continue thereafter until
the third anniversary of the Commencement Date, which is February 1, 2002 (the
"Termination Date"), unless sooner terminated in accordance with the terms
hereof. Thereafter, as of the Termination Date, this Agreement shall continue
in effect until such time as either party hereto shall give ninety (90) days
prior written notice of its or his intention to terminate this Agreement, or
sooner, in the event a specific provision contained herein is invoked by
either party with respect to termination.
3. DUTIES.
3.1 Job Description. Executive shall be engaged as, and hold the
position of Vice President of Finance. The Company reserves the right, in its
discretion and as conditions reasonably warrant, to adjust and/or revise
Executive's title and/or position. Executive shall have such authority and
responsibilities as are normally attendant thereto and agrees to perform such
duties and render such services consistent therewith, and as may from time to
time be reasonably required of him by the Company. Executive shall devote his
full business time, attention and best efforts to the affairs of the Company
during the term of this Agreement. Executive shall perform all duties and
accept all responsibilities incident to his position and shall fully cooperate
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with all the officers of the Company.
3.2 Evaluations. Executive will report directly to the Executive
Vice President - Chief Financial Officer of President Casinos, Inc., and to
such other person(s) as the Company may determine from time to time in its
sole discretion. Executive's job performance will be evaluated at least
annually for consideration of merit increases in salary, wage re-evaluation
and any other form of supplemental income or benefits that the Company may
award to its executives. Executive may also be eligible for an annual bonus
based on performance, such bonus to be determined by the Company in its sole
discretion.
4. BASE SALARY AND REIMBURSEMENT FOR EXPENSES.
4.1 Base Salary. The Company shall pay to Executive a base salary
of One Hundred Fifteen Thousand Dollars ($115,000.00) per annum (the "Base
Salary"). The Base Salary shall be payable in accordance with the Company's
regular payroll practices in effect from time to time.
4.2 Reimbursement of Expenses. The Company will promptly
reimburse Executive, upon receipt of appropriate vouchers therefor, for all
reasonable and necessary expenses incurred by Executive for travel,
entertainment and miscellaneous and other business expenses which he incurs in
connection with the performance of his duties hereunder. Such reimbursement
shall be made in accordance with the Company's regular reimbursement
procedures and practices in effect from time to time. In addition, the
Company shall pay the investigative costs of licensing Executive in all
jurisdictions in which licensing of Executive is required.
5. FRINGE BENEFITS.
5.1 Plans. Executive shall be entitled to participate in any and
all fringe and other benefit plans presently offered, or as may be hereafter
modified, or as may be hereafter established by the Company, from time to time
in its sole discretion including, without limitation, stock option plans,
profit sharing plans, thrift and savings plans, insurance plans, supplemental
insurance and benefit plans, any employee benefit and/or welfare plans,
including but not limited to health, medical and savings investment plans
sponsored by the Company for its executives and employees, and all other
benefits which are generally available to the Company's executives and
employees, all on terms at least equivalent to those generally provided by the
Company. However, nothing contained in this Paragraph shall be construed as
requiring the Company generally to maintain any such fringe and other benefit
program.
6. NON-DISCLOSURE. Executive shall not at any time during the term of this
Agreement or thereafter, except as properly required in the conduct of the
business of the Company and as authorized by the Company, or as otherwise
required by law or court order, disclose or authorize anyone else to disclose
any secret, proprietary or confidential information, material or matter
relating to the Company or any of its customers. Executive acknowledges that,
by reason of Executive's employment by the Company, Executive will have access
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to confidential information of the Company, which is a valuable and unique
asset of the Company. Executive acknowledges that Executive has no claim or
right to the continued use or possession of such documents, files and other
materials which were received from the Company during his employment,
following termination of his employment with the Company. Accordingly,
Executive agrees that, upon termination of employment, Executive shall not
retain any such documents, files or other materials and will promptly return
to the Company any documents, files or other materials in Executive's
possession or custody.
7. COVENANT NOT TO COMPETE.
7.1 Terms Of Covenant Not To Compete. During the term of this
Agreement and for a period of one (1) year following its termination in the
event of a "Restriction Termination" (as hereinafter defined), Executive shall
not, without the prior written consent of the Company, engage directly or
indirectly in any competitive gaming ventures located within a 200 mile radius
of any gaming facility owned, operated, or managed by the Company as of the
effective date of the subject termination, and shall not be an officer,
director, employee, independent contractor, agent, consultant to or
Substantial Owner of any such restricted business. "Substantial Owner" as
used herein shall mean an owner of at least five percent (5%) of the
beneficial equity or voting interests in a subject restricted business.
7.2 Restriction Termination. For purposes of this Agreement, the
term "Restriction Termination" shall mean a termination of Executive's
employment under this Agreement by reason of either (a) his voluntary
resignation, or (b) his discharge by the Company for "Cause," as defined
below.
8. TERMINATION.
8.1 Executive's employment under this Agreement shall terminate
only upon the occurrence of any of the following:
(a) Death or Disability. The parties expressly acknowledge that
Executive's employment under this Agreement will terminate immediately upon
his death, if the Agreement has not been previously terminated for other
reasons. Further, the parties agree that the Company may terminate this
Agreement and Executive's employment thereunder in the event that, an
independent physician selected by the Company and reasonably satisfactory to
Executive or his representative, determines that, for a period of six (6)
successive months or for shorter periods aggregating nine (9) months in any
period of eighteen (18) consecutive months, Executive is not able to perform
the essential functions of his position, with or without reasonable
accommodation, within the meaning of the Americans with Disabilities Act of
1990 due to any physical or mental disability or impairment.
(b) Resignation. The voluntary resignation of Executive, provided
that Executive agrees that he will give not less than one (1) month's advance,
written notice of such resignation to the Company, which notice may be waived
by the Company in its sole discretion.
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(c) Cause. For "Cause," which for purposes of this Agreement,
shall only be any of the following:
(i) subject to the terms hereof, any gaming commission with
jurisdiction over a facility owned, operated or managed
by the Company which requires Executive's licensure,
refuses or fails within a reasonable period of time to
grant a license to Executive or suspends or revokes a
license granted to Executive;
(ii) any reasonable determination by the Executive Vice
President and Chief Financial Officer, President
Casinos, Inc., after giving due consideration to the
terms of this Agreement, of a material failure by
Executive to perform or fulfill his covenants,
obligations and duties under this Agreement, other than
by reason of Permanent Disability as provided in
subparagraph 8.1(a) above; or
(iii) an act of fraud, theft, embezzlement or malfeasance by
Executive against the Company, or his conviction of any
felony or other crime involving moral turpitude, whether
or not directed against the Company, habitual
insobriety, substance abuse or any other action on the
part of Executive that is damaging or detrimental in any
significant way to the Company.
(d) Company Breach. In the event of the Company's material breach
of this Agreement (which shall be deemed to include any failure to timely pay
any amounts owing to Executive hereunder), Executive shall have the right to
terminate his employment hereunder; provided that Executive shall give written
notice to the Company of his intent to so terminate setting forth the basis
for such termination, and the Company shall then have thirty (30) days after
receipt of such notice to fully cure the subject breach.
(e) Suspension, Revocation, Refusal to Issue. In the event of the
occurrence described in subparagraph 8.1(c)(i) above, Executive shall only be
terminated in the event that he is no longer able to perform the services for
which he has been engaged by the Company in accordance with the terms of this
Agreement, during the pendency of an appeal. During the pendency of such
appeals and until the subject license revocation, suspension or refusal to
grant such license becomes final, and provided that Executive is not
terminated in accordance with the immediately preceding sentence, Executive
shall be suspended without pay and shall thereafter not be entitled to any
benefits or compensation hereunder and shall be otherwise treated hereunder as
if he had been terminated for "Cause." Notwithstanding the foregoing, in the
event that the gaming commission's determination is overturned on appeal,
Executive shall be immediately reinstated and shall be entitled to all
compensation and benefits otherwise due to him during the pendency of such
suspension, provided Executive has not been terminated for any other cause
specified herein. However, if the gaming commission's determination is not
overturned on appeal, the Executive shall be deemed to have been terminated as
of the date of his suspension.
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(f) Change in Control. In the event of a "Change in Control" as
defined, (i) Executive shall have the right to terminate his employment
hereunder, by written notice to the Company (the "Termination Notice"), for a
period of thirty (90) days from the closing date related to such "Change in
Control", and (ii) if the Executive exercises this right, the non-vested
balance of any options vesting over time granted to Executive under the Stock
Option Plan shall immediately vest.
In the event that Executive elects to terminate his employment with
the Company in accordance with this subparagraph 8.1(f), Executive, in his
sole discretion, shall have the right to require the Company to pay him a lump
sum amount equal to one times the Base Salary in effect as of the effective
date of such termination, vest and be paid for any accrued bonuses and
continue to be covered for 1 year by any health plans in effect at such
termination, in which event Executive shall be subject to and bound by the
Covenant Not to Compete contained in Paragraph 7 hereof as if a "Restriction
Termination" had occurred.
8.2 Termination Obligations of Executive. In the event
Executive's employment under this Agreement is terminated, Executive, or his
legal representative in case of termination by death or Executive's physical
or mental disability which renders the Executive unable to serve, shall:
(a) by the close of the next business day following termination,
resign from all corporate and board positions held in the Company and any of
its subsidiary and affiliated companies;
(b) promptly return to a representative designated by the Company
all property, including but not limited to, automobiles, keys, identification
cards and credit cards of the Company or any of its subsidiaries or affiliated
companies; and
(c) incur no further expenses or obligations on behalf of the
Company, or any of its subsidiary and affiliated companies.
8.3 Survival. Notwithstanding the termination of Executive's
employment pursuant to subparagraphs 8.1(b)-(f), inclusive, the obligations of
Executive pursuant to Paragraphs 6 and 7 [i.e., confidentiality and non-
compete covenants] shall survive and remain in full force and effect for the
periods therein provided, and the provisions for Equitable Relief against
Executive, pursuant to Paragraph 8.4 hereof, shall also continue in full force
and effect.
8.4 Equitable Relief. Executive acknowledges that the
restrictions contained in Paragraphs 6 and 7 [i.e., confidentiality and non-
compete covenants] hereof are, in view of the nature of the business of the
Company, reasonable and necessary to protect the legitimate interests of the
Company, and that any violation of any provision of those Paragraphs will
result in irreparable injury to the Company. Executive also acknowledges that
in the event of such violation, the Company shall be entitled to injunctive
relief, without the necessity of proving actual damages, and to an equitable
accounting of all earnings, profits and other benefits arising from any such
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violation, which rights shall be cumulative and in addition to any other
rights or remedies to which the Company is entitled. Executive agrees that in
the event of any such violation, an action may be commenced for any such
injunctive relief and other equitable relief or other legal relief in any
federal or state court of competent jurisdiction. Executive agrees that
effective service of process may be made upon Executive by mail, under the
notice provisions contained in Paragraph 10 hereof.
9. TERMINATION COMPENSATION.
9.1 Compensation. Subject to the terms of Paragraph 9.2 hereof,
in the event that Executive shall terminate his employment under this
Agreement pursuant to subparagraph 8.1(d) above [Company Breach], or if the
Company shall terminate Executive's employment under this Agreement for any
reason other than those set forth in subparagraphs 8.1(a) [Death or
Disability] or 8.1(c) [Cause], the following shall apply: (i) the Company
shall pay Executive his full Base Salary through the date of termination, at
the rate in effect at the time notice of such termination is given; and (ii)
in lieu of any further salary or other payments to Executive hereunder for
periods subsequent to the date of termination, the Company shall pay as
liquidated damages to Executive in accordance with the terms of Paragraph 9.2
hereof an amount equal to the lesser of (A) the product of one-twelfth of the
annual Base Salary in effect as of the date of termination, multiplied by the
number of months (excluding partial months) remaining in the employment term
hereunder; or (B) one hundred percent (100%) of the Annual Base Salary in
effect as of the date of termination.
9.2 Payment Terms.
(a) In the event that Executive is entitled to receive severance
payments in accordance with subparagraph 9.1 (ii) hereof, such severance shall
be paid to Executive through the Termination Date in successive, equal monthly
payments commencing on the 15th day following the date of such termination.
(b) In the event, however, that Executive violates the Covenant Not
To Compete contained in Paragraph 7 hereof, the foregoing severance shall be
payable to Executive only through the date of such violation and the Company
shall be entitled to cease providing Executive with such severance thereafter
and is released and forever discharged of any other obligations to make any
further payments whatsoever. The parties hereto acknowledge and agree that in
the event Executive is receiving severance under subparagraph 9.1(ii) as a
result of a termination pursuant to subparagraph 8.1 (d) [Company Breach], the
Company's sole and exclusive remedy for Executive's violation of the Covenant
Not To Compete shall be to cease making the foregoing severance payments.
Nevertheless, nothing in this Paragraph 9.2 limits the Company's remedies
contained in Paragraph 8.4 for Executive's breach of the covenants contained
in Paragraphs 6 and 7 [i.e., confidentiality and non-compete] in the event
that Executive's employment is terminated for any reasons other than those
recited in subparagraph 8.1 (d).
9.3 No Mitigation. Executive shall not be required to mitigate
the amount of any payments provided for in Paragraph 9.1 above by seeking
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other employment or otherwise, nor shall the amount of any payment provided
for herein be reduced by any compensation earned by Executive as the result of
employment by another employer. However, the non-mitigation provisions
recited in this Paragraph 9.3 shall have no application in the event that
Executive's employment is terminated for any reason other than that contained
in subparagraph 8.1 (d).
9.4 Termination Compensation For Death or Disability and Voluntary
Resignation. In the event that Executive resigns in accordance with
subparagraphs 8.1(a) or 8.1(b), then all salary and fringe benefits whatsoever
shall cease as of the date of his termination, except that Executive or his
legal representative shall be entitled to reimbursement for all non-
reimbursed, reasonable business expenses incurred by Executive prior to
termination in accordance with Paragraph 4.2.
10. NOTICES. Unless either party notifies the other to the contrary, any
notice required hereunder shall be duly given if delivered in person or by
registered, first-class United States mail or by recognized overnight mail
carrier:
If to the Company:
President Casinos, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Chief Operating Officer
and: Xxxxx Xxxxxxx
Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000-0000
If to Executive:
Xxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
11. GENERAL PROVISIONS.
11.1 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns and
Executive, his designees, and his estate. Neither Executive, his designees,
nor his estate shall commute, pledge, encumber, sell or otherwise dispose of
the rights to receive the payments provided in this Agreement, which payments
and the rights thereto are expressly declared to be nontransferable and
nonassignable (except by death or otherwise by operation of law).
11.2 Governing Law. This Agreement shall be governed by the laws
of the State of Delaware from time to time in effect.
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11.3 Entire Agreement. This Agreement represents the entire
agreement between Executive and the Company with respect to the subject matter
hereof. This Agreement may not be amended or modified except by a writing
signed by the parties hereto. Any written amendment, waiver or termination
hereof executed by the Company and Executive (or his estate) shall be binding
upon them and upon all persons, without the necessity of securing the consent
of any other person, and no person shall be deemed to be a third party
beneficiary under this Agreement.
11.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same Agreement.
11.5 No Waiver. Except as otherwise expressly set forth herein,
no failure on the part of either party hereto to exercise and no delay in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
11.6 Headings. The headings of the paragraphs of this Agreement
have been inserted for convenience of reference only and shall in no way
restrict any of the terms or provisions hereof.
11.7 Indemnification. The Company agrees to defend, indemnify and
hold Executive harmless from and against any liabilities, costs and expenses
(including, without limitation, in connection with any actions relating to
licensing by any gaming or other authorities) arising in relation to
Executive's services as an employee of the Company or any of its affiliates to
the fullest extent permitted by applicable law. The foregoing indemnification
obligation shall not be applicable in the event Executive is found by a court
of competent jurisdiction, in a judgment that is not subject to further
appeal, to have breached the terms of this Agreement in a material respect or
to have been grossly negligent with respect to the matter for which he is
seeking indemnification. Subject to the foregoing, the Company shall pay on a
regular basis, to the fullest extent permitted by law, any legal and other
professional fees and expenses incurred with respect to a matter which is the
subject of indemnification. This indemnification obligation shall survive the
termination of this Agreement.
11.8 Severability and Reformation.
(a) The covenants, provisions and sections of this Agreement
will be severable, and in the event that any portion is held to be unlawful or
unenforceable by any court of competent jurisdiction, the same will not affect
any other portion of this Agreement, and the remaining terms and conditions or
portions thereof will remain in full force or effect. This Agreement will be
construed in such cases as if such unlawful or unenforceable portion had never
been contained in this Agreement, in order to effectuate the intentions of
Company and Executive in executing this Agreement.
(b) In furtherance and not in limitation of the foregoing,
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should any durational or geographical restriction or restriction on business
activities covered under this Agreement be found by any court of competent
jurisdiction to be overly broad, Executive and Company intend that such court
will enforce this Agreement in any less broad manner the court may find
appropriate by construing such overly broad provision to cover only that
duration, extent or activity which may be enforceable. The parties
acknowledge the uncertainty of the law in this respect and expressly agree
that this Agreement be given the construction that renders its provisions
valid and enforceable to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PRESIDENT CASINOS, INC.
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Exec. V.P. & CFO
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EXECUTIVE
/s/ XXXXX X. XXXXXXXX
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XXXXX X. XXXXXXXX
