EMPLOYMENT AGREEMENT
Exhibit 10.4
This Employment Agreement, dated as of April 1, 2011 (the “Agreement”), by and between RIVIERA
OPERATING CORPORATION (“ROC” or “Company”), and XXXXXX X. XXXXXXXX (“Employee”).
In consideration of the mutual agreements hereinafter set forth, the parties hereto agree as
follows:
| 1. | Revocation of Prior Agreements: |
The parties hereby agree to revoke all prior employment agreements between the
parties and any affiliates of the parties upon the effective date of this Agreement.
| 2 | Employment: |
During the “Term” (hereinafter defined), the Company agrees to employ Employee in
the capacity of Special Advisor To The President and Chief Executive Officer upon
the terms and conditions and for the compensation herein provided, and Employee
agrees to be so employed and to render the services herein specified.
| 3 | Term of Employment: |
The Term of employment of Employee hereunder will be for a thirteen (13) month
period commencing on April 1, 2011 and ending on April 30, 2012, except that either
party may terminate this Agreement at any time by providing the other party thirty
(30) days written notice, subject to early termination provisions in Sections 6, 7
and 10 of this Agreement.
| 4 | Duties: |
During the Term Employee agrees to:
| a. | devote his full and exclusive business time and
attention to the business of ROC (vacation and sick leave in accordance
with ROC’s policy and personal time consistent with his position excluded);
and |
| b. | perform such reasonable duties as the Company’s Chief
Executive Officer shall from time to time assign to Employee. |
| 5. | Salary: |
During the Term Employee shall receive a salary of $400,000 per annum, payable
bi-weekly in arrears (“Base Salary”).
| 6. | Termination By Company Without CAUSE: |
In the event the Company exercises its right to terminate this Agreement pursuant to
Paragraph 3, above, for any reason except CAUSE as hereinafter defined, Employee
shall receive:
| a. | Base Salary paid in equal bi-weekly installments for
the remainder of the Term; and |
| b. | full health care benefits for the remainder of the
Term. |
| 7. | Death and Disability: |
| a. | During the Term of this Agreement and any extension
thereof, Employee’s employment and this Agreement may be terminated without
further liability to the Company due to death or disability of Employee.
Employee shall not be entitled to receive any further compensation or
benefits from the Company effective the date of such termination due to death
or disability. |
| b. | For purposes of this Agreement, Disability means that
the Company shall find on the basis of medical evidence satisfactory to it
that Employee is so totally mentally or physically disabled as to be unable
to engage in further employment by Company and that such disability shall
be determined to be such that it will cause, or actually does cause or has
caused, Employee to be absent from work for a period, or aggregate of
periods, in excess of three (3) months in any one (1) twelve (12) month
period. |
| 8. | Profit-Sharing, 401(k) Plan and ESOP: |
In addition to the Base Salary, Employee shall be eligible for participation in all
Defined Contribution Plans adopted by Company.
| 9. | Additional Benefits and Compensation: |
During the Term, Employee shall be entitled to:
| a. | life insurance, group health insurance, including major
medical and hospitalization, comparable to such benefits offered to other
key employees of the Company; and |
| b. | reimbursement for all reasonable expenses incurred by
Employee in connection with the performance of his duties and in accordance
with any applicable policy of the Company, subject to submission of
appropriate documentation therefore. |
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| 10. | Termination By Company For “CAUSE” or Termination By Employee: |
| a. | If the Company shall discharge Employee for “CAUSE” as
hereinafter defined, Employee shall not be entitled to receive any further
compensation or benefits from the Company effective the date of such For
Cause termination. |
| b. | If Employee exercises his right to terminate this
Agreement (“Resignation”), he shall not be entitled to any compensation or
benefits from the Company upon the effective date of the Resignation. |
| c. | “CAUSE” shall have the following meanings: |
| i. | felony conviction of Employee; |
| ii. | a final civil judgment shall be
entered after all appeals have been exhausted in which a material
aspect involved Employee’s fraud or dishonesty whether or not
involving the Company; |
| iii. | refusal by Employee to perform
“Reasonable Duties” (hereinafter defined), assigned to him by the
Company’s Chief Executive Officer, provided Employee shall fail to
correct any such failure within thirty (30) days after written
notice (“Cure Period”); |
| iv. | the Gaming Authorities of the State
of Nevada or any other state in which the Company shall conduct
gaming operations shall determine that Employee is unsuitable to
act as an employee of a gaming company in his individual capacity;
or |
| v. | “Reasonable Duties” — Employee shall
not be required (x) on a permanent basis to spend more than fifty
percent (50%) of his business time at least twenty-five (25) miles
outside of Las Vegas (or be required to change his residence), (y)
to expose himself to a risk of his physical safety or jeopardize
his ability to be licensed by any state gaming authority, or (z)
perform duties which are inconsistent with his role specified in
Section 2 of this Agreement. |
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| 11. | Confidential Information; Non-Solicitation: |
| a. | During the Term and for a Two (2) year period
commencing on the effective date of the termination of this Agreement for
any reason: |
| i. | Employee shall hold in a fiduciary
capacity for the benefit of the Company and all affiliates of the
Company all secret or confidential information, knowledge or data
relating to the Company or its affiliates, and their respective
businesses which shall not be public knowledge (other than
information which becomes public as a result of acts of Employee
or his representatives in violation of this Agreement), including,
without limitation, and technological or financial information of
the Company or its affiliates; and |
| ii. | Employee shall not, without the prior
written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company
and those designated by it in writing. |
| b. | While actively employed by the Company, the Employee
will not, directly or indirectly, own, manage, operate, control or
participate in the ownership, management or control of, or be connected as
an officer, employee, partner, director, or consultant or otherwise with,
or have any financial interest other than stock holdings in a public
corporation, in any hotel or casino. |
| c. | During the Term and for a one (1) year period as
measured from the effective date of the termination of this Agreement for
any reason, Employee will not solicit or contact any employee of the
Company or its affiliates with a view to inducing or encouraging such
employee to leave the employ of the Company or its affiliates for the
purpose of being employed by Employee, an employer affiliated with
Employee, or any competitor of the Company or any affiliate thereof. |
| d. | Employee acknowledges that the provisions of this
Section 11 are reasonable and necessary for the protection of Company and
that the Company will be irrevocably damaged if such provisions are not
specifically enforced. Accordingly, Employee agrees that, in addition to
any other relief to which the Company may be entitled in the form of actual
or punitive damages, the Company shall be entitled to seek and obtain
injunctive relief from a court of competent jurisdiction (without posting
of a bond therefor) for the
purposes of restraining Employee from any actual or threatened breach of
such provisions. |
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| 12. | Miscellaneous: |
| a. |
| b. | This Agreement supersedes all prior agreements and
under-standings among the parties and their respective affiliates, and
contains the full understanding of the parties hereto with respect to the
subject matter hereof. Any change, modification or waiver of this
Agreement must be in writing, signed by both parties hereto or, in the case
of a waiver, by the party waiving compliance. This Agreement may be
executed in one (1) or more counterparts, each of which shall be deemed an
original. The captions of each article and section are intended for
convenience only. All references herein to days, weeks and months shall
mean by calendar unless specifically stated to the contrary. All
references herein to the singular shall include the plural, and all
references to representations and warranties made hereunder shall survive
the execution and delivery and closing of this Agreement. |
| c. | It is the intention of the parties hereto that this
Agreement shall not inure to the benefit of any third parties not a party
to this Agreement, and it is specifically intended that no third party
beneficiary relationships, benefits or obligations shall arise or be deemed
to exist as a result of this Agreement. |
| d. | This Agreement shall insure to the benefit of and be
binding upon each of the parties hereto, their heirs, assigns, successors,
executors and personal representatives, however, as a personal service
contract, it shall not be assignable by Employee. |
| e. | The failure or delay by either party in any one or more
instances to enforce one (1) or more of the terms and conditions of this
Agreement or to exercise any right or privilege under this Agreement shall
not thereafter be construed as a waiver of any such term, condition, right
or privilege and the same and all other terms, conditions, rights or
privileges under this Agreement shall continue to remain in full force and
effect as though no such failure or delay had occurred. |
| f. | No voluntary or involuntary successor-in-interest of
the Company shall acquire any rights or powers under this Agreement, except
as specifically set forth herein. Otherwise, the Company shall not assign
all or any part of this Agreement. |
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| 13. | Notices: |
All notices, requests, demands, directions and other communications provided for
hereunder shall be in writing and delivered personally or mailed by certified or
registered mail, return receipt requested, to the following addresses for each party
during the Term or until such time as written notice, as provided hereby, of a
change of address to be used thereafter is given to the other party, with copies to
such legal counsel as each party, from time-to-time, may designate.
| If to: | Company Riviera Operating Corporation 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxxx, XX 00000 Attn: Chief Executive Officer |
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| If to: | Employee Xxxxxx X. Xxxxxxxx 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxxx, XX 00000 PERSONAL & CONFIDENTIAL |
Notices delivered personally shall be deemed to have been given, upon delivery;
notices delivered by certified or registered mail shall be deemed to have been given
seventy-two (72) hours after the date deposited in the mail, except as otherwise
provided herein.
| 14. | Government Approvals: |
Notwithstanding any other terms and provisions set forth in this Agreement, it is
understood and agreed that the engagement of Employee hereunder, the obligation of
the parties hereto, and the effect of the Agreement, shall be subject to the
approval of each and all of the terms, covenants and provisions of this Agreement by
the Nevada Gaming Authorities and other Governmental Authorities from whom approval,
if any, is required under the laws of the State of Nevada, the County of Xxxxx, or
any and all other governmental agencies having jurisdiction thereover. Each of the
parties hereby covenant and agree to exercise
their best good faith efforts to proceed to obtain any and all such necessary
approvals.
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IN WITNESS WHEREOF, the parties herein have entered into this Agreement the day and year first
written above.
| COMPANY: RIVIERA OPERATING CORPORATION |
EMPLOYEE: XXXXXX X. XXXXXXXX |
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By:
|
Xxxx Xxxx | By: | Xxxxxx X. Xxxxxxxx | |||||
President and CEO |
Employee |
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