Exhibit 10.26
FORM FOR EXISTING EMPLOYEES
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
1st day of January, 2002 between Isle of Capri Casinos, Inc., a Delaware
corporation (the "Company") and Xxxxxxx Xxxxxxxxx ("Employee").
In consideration of the mutual promises of this Agreement, the Company
and Employee agree as follows:
1. Effective Date. This Agreement shall be effective as of the
date hereof and replaces the employment agreement in place between the "Company"
and the "Employee".
2. Employment.
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(a) Term. The Company hereby employs Employee, and Employee
accepts such employment and agrees to perform services for the Company and/or
its subsidiaries, (hereinafter collectively referred to as the "Company") for an
initial period of one (1) year from and after the Effective Date of this
Agreement (the "Initial Term") and for successive one-year periods (the "Renewal
Terms"), unless terminated at an earlier date in accordance with Section 3 of
this Agreement (the Initial Term and the Renewal Terms together referred to as
the "Term of Employment").
(b) Service with Company. During the Term of Employment,
Employee agrees to perform reasonable employment duties as the Board of
Directors of the Company shall assign to him from time to time. Employee also
agrees to serve, for any period for which he is elected as an officer of the
Company; provided, however, that Employee shall not be entitled to any
additional compensation for serving as an officer of the Company. From and after
the Effective Date, Employee shall continue to be an executive officer of the
Company with the title of Chief Financial Officer.
(c) Performance of Duties. Employee agrees to serve the
Company faithfully and to the best of his ability and to devote substantially
all of his time, attention and efforts to the business and affairs of the
Company during the Term of Employment.
(d) Compensation. During the Term of Employment, the Company
shall pay to Employee as compensation for services to be rendered hereunder an
aggregate base salary of $500,000 per year, payable in equal monthly, or more
frequent payments, subject to increases, if any, as may be determined by the
Company. Employee shall also be eligible to participate in any stock option
plans of the Company. In addition to the base salary, any bonuses, and
participation in stock option plans, Employee shall be eligible to participate
in any employee benefit plans or programs of the Company as are or may be made
generally available to employees of the Company and those made available to
officers of the Company. The Company will pay or reimburse Employee for all
reasonable and necessary out-of-pocket
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expense incurred by him in the performance of his duties under this Agreement,
subject to the presentment of appropriate vouchers in accordance with the
Company's policies for expense verification.
3. Termination.
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(a) The Term of Employment shall terminate prior to its
expiration in the event that at any time during such term:
(i) The Company delivers a notice of termination
for "cause to Employee". For purposes of this
section, "cause" shall mean any dishonesty,
disloyalty, material breach of corporate
policies, gross misconduct on the part of
Employee in the performance of Employee's
duties hereunder or a violation of Section 5 of
this agreement. If Employee is terminated for
cause, there shall be no severance paid to
Employee and his benefits shall terminate,
except as may be provided by law.
(ii) The Company for any other reason terminates the
Term of Employment. If Employee signs a General
Release in a form acceptable to the Company
that releases the Company from any and all
claims that Employee may have and affirmatively
agrees not to violate any of the provisions of
Section 5 hereof, Employee shall be entitled to
continue to receive his salary and, to the
extent legally permissible continue to
participate in the employee benefit programs
for a period of 24 months from and after such
termination or until new employment begins,
which ever occurs first. If Employee fails to
sign the form, Employee shall not be entitled
to any continuing payments or benefits. In lieu
of monthly payments, a lump sum award may be
authorized by the Board of Directors. Employee
shall be provided out-placement service with an
out-placement firm or service selected by the
Company and at the reasonable expense of the
Company.
(iii) Employee for any reason voluntarily terminates
the Term of Employment. In said event, Employee
shall not be entitled to any compensation and
his benefits shall terminate, except as may be
provided by law, from and after termination.
(iv) However, if Employee voluntarily terminates the
Term of Employment due to Retirement all stock
options shall become fully vested and
exercisable and the Employee's deferred bonus
payments shall be fully vested and paid. The
term "Retirement" shall mean the termination by
Employee of his employment by reason of
reaching the age of 65 or such later date
approved by the Board of Directors.
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(v) Employee dies or becomes disabled as determined
in good faith by the Board of Directors.
Employee, or his estate, shall continue to
receive his salary and, to the extent legally
permissible continue to participate in the
employee benefit programs for a period of 24
months from and after such termination or until
new employment begins, which ever occurs first.
In lieu of monthly payments, a lump sum award
may be authorized by the Board of Directors.
Employee shall also be entitled to a lump sum
payment equal to the average of the last 3
years bonus payment inclusive of deferred
amounts.
(b) Except as provided above, the vesting of stock options
and deferred bonus payments shall be governed by the provisions of the Company's
Stock Option Plans and Deferred Bonus Plan.
4. Change In Control of the Company. A change in control of the
Company defined as its sale, acquisition, merger or buyout to an unaffiliated
person that has significant effect or a reduction in the responsibilities,
position or compensation of Employee or if Employee is required to move the
location of his principal residence a distance of more than 35 miles prior to or
during the initial 12 months of the change of control will entitle Employee to
the following severance:
(i) 24 month's salary paid as salary continuation plus
a lump sum payment equal to the average of the
previous 3 years bonus payment inclusive of
deferred amounts. Salary continuation shall
terminate if and when Employee begins new
employment during the period of salary
continuation.
(ii) Health and welfare benefits shall be fully paid by
the Company and run concurrently with salary
continuation.
(iii) All stock options shall become fully vested and
exercisable and Employee's deferred bonus payments
shall be fully vested and paid.
(iv) Employee shall be provided out-placement services
with a mutually agreed upon out-placement firm or
service selected by the Company and at the
reasonable expense of the Company.
5. Confidentiality, Non-competition and Non-Solicitation.
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(a) Ownership. Employee agrees that all inventions,
copyrightable material, business and/or technical information, marketing plans,
customer lists and trade secrets which arise out of the performance of this
Agreement are the property of the Company.
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(b) Confidentiality. Except as is consistent with Employee's
duties and responsibilities within the scope of his employment with the Company,
Employee agrees to keep confidential indefinitely, and not to use or disclose to
any unauthorized person, information which is not generally known and which is
proprietary to the Company, including all information that the Company treats as
confidential, ("Confidential Information"). Upon termination of Employee's
employment, Employee will promptly turn over to the Company all software,
records, manuals, books, forms, documents, notes, letters, memoranda, reports,
data, tables, compositions, articles, devices, apparatus, marketing plans,
customer lists and other items that disclose, describe or embody Confidential
Information including all copies of the confidential Information in his
possession, regardless of who prepared them.
(c) Non-competition. Employee agrees to the following
covenant not to compete beginning on the effective date of this Agreement and
continuing until one year after termination of his employment relationship with
the Company:
Employee agrees not to compete, directly or
indirectly (including as an officer, director,
partner, employee, consultant, independent
contractor, or more than 5% equity holder of any
equity) with the Company in any way concerning the
ownership, development or management of any gaming
operation or facility within a 75-mile radius of any
gaming operation or facility with respect to which
the Company owns, renders or proposes to render
consulting or management services.
(d) Non-solicitation.Employee agrees not to solicit or
recruit, directly or indirectly, any management employee (director level and
above) of the Company for employment during the one (1) year period after
termination of his employment relationship with the Company.
6. Miscellaneous.
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(a) Successors and Assigns. This Agreement is binding on and
inures to the benefit of the Company's successors and assigns. The Company may
assign this Agreement in connection with a merger, consolidation, assignment,
sale or other disposition of substantially all of its assets or business. This
Agreement may not be assigned by Employee.
(b) Modification, Waivers. This Agreement may be modified or
amended only by a writing signed by the Company, and Employee. The Company's
failure, or delay in exercising any right, or partial exercise of any right,
will not waive any provision of this Agreement or preclude the Company from
otherwise or further exercising any rights or remedies hereunder, or any other
rights or remedies granted by any law or any related document.
(c) Governing Law, Arbitration. The laws of Delaware will
govern the validity, construction, and performance of this Agreement. Any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by binding arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules,
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and judgment on the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. Both the Company and Employee hereby consent
to this binding arbitration provision.
(d) Remedies. Employee understands that if he fails to
fulfill his obligations under this Agreement, the damages to the Company would
be very difficult to determine. Therefore, in addition to any other rights or
remedies available to the Company at law, in equity, or by statute, Employee
hereby consents to the specific enforcement of this Agreement by the Company
through an injunction or restraining order issued by the appropriate court.
(e) Captions. The headings in this Agreement are for
convenience only and do not affect the interpretation of this Agreement.
(f) Severability. To the extent any provision of this
Agreement shall be invalid or enforceable with respect to Employee, it shall be
considered deleted here from with respect to Employee and the remainder of such
provision and this Agreement shall be unaffected and shall continue in full
force and effect. In furtherance to and not in limitation of the foregoing,
should the duration or geographical extent of, or business activities covered
by, any provision of this Agreement be in excess of that which is valid and
enforceable under applicable law with respect to Employee, then such provision
shall be construed to cover only that duration, extent or activities which are
validly and enforceably covered with respect to Employee. Employee acknowledges
the uncertainty of the law in this respect and expressly stipulates that this
Agreement be given the construction which renders its provisions valid and
enforceable to the maximum extent (not exceeding its expressed terms) possible
under applicable laws.
(g) Entire Agreement.This Agreement supersedes all previous
and contemporaneous oral negotiations, commitments, writings and understandings
between the parties concerning the matters herein or therein, including without
limitation, any policy of personnel manuals of the Company.
(h) Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and sent by registered
first-class mail, postage prepaid, and shall be deemed delivered upon hand
delivery or upon mailing (postage prepaid and by registered or certified mail)
to the following address:
If to the Company, to:
Isle of Capri Casinos, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxx XX 00000
If to the Employee: to:
These addresses may be changed at any time by like notice.
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed
in a manner appropriate for such party as of the date first above written.
ISLE OF CAPRI CASINOS, INC.
By: /s/
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"EMPLOYEE"
By: /s/ Xxxxxxx Xxxxxxxxx
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