Exhibit 10.63
EMPLOYMENT AGREEMENT
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Agreement, made and entered into as of the 18th day of August, 1995 by and among
Xxxxx Plaza Associates, a General Partnership (the "TPA"), with its successors
and assigns permitted under this Agreement), having offices at The Boardwalk at
Mississippi Avenue, Atlantic City, New Jersey, and Xxxxxxx X. X'Xxxxxx residing
at Apartment 8D, 000 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Executive").
This agreement will serve to confirm the understanding and agreement pursuant to
which TPA, has agreed with Executive as follows:
1. a. Executive shall be employed by TPA in the capacity of Executive Vice
President of Hotel Operations of Xxxxx Plaza Hotel and Casino in Atlantic City,
New Jersey. The Executive shall have such duties and responsibilities as are
reasonably assigned to him by the TPA's Hotel President. The Executive shall
have such other general powers and duties of management which are usually vested
in an Executive Vice President of Hotel Operations. TPA has taken prior to the
execution hereof all appropriate legal action to authorize the execution and
performance of this Agreement in accordance with its terms, appoint the
Executive Vice President of Hotel Operations. The Executive, in carrying out his
duties under this Agreement, shall report to the Hotel President and follow the
lawful directions of the Hotel President consistent with this Agreement.
b. Prior to the receipt of the necessary licenses from the New Jersey
Casino Control Commission for an Executive to be employed by TPA as Executive
Vice President of Hotel Operations, Executive shall be employed as an
Administrative Assistant to the Hotel's President and perform only such duties
and responsibilities as are permitted by law and the regulations of the Casino
Control Commission.
2. The Term hereof shall commence effective September 18, 1995, and expire
September 17, 1997, ("Expiration Date"), unless terminated earlier pursuant to
Paragraphs 10 or 11 hereof. Executive shall have the option, exercisable by
written notice served not earlier than 90 days nor later than 60 days prior to
the Expiration Date, to renew this Agreement for an additional one (1) year
period upon the same terms as set forth herein except that Executive's annual
base salary shall be negotiated upward in good faith between the parties and
shall not be less than the salary payable hereunder. If the Executive exercises
this option, the Expiration Date shall become September 17, 1998.
3. The Executive shall be entitled to compensation as follows:
a. $50,000 upon the execution hereof as a one time bonus to induce
Executive to enter into this Agreement.
b. Executive shall be paid an annual base salary of Two Hundred Fifty
Thousand, ($250,000) Dollars, payable periodically in accordance with TPA's
regular payroll practices.
c. For the year 1996 and thereafter, Executive shall be entitled, if
otherwise qualified under the terms thereof, to participate in any executive
benefit or bonus programs adopted by TPA in its sole and absolute discretion,
including but not limited to TPA's Incentive Compensation Plan, or similar or
comparable plan or arrangement, if any, on terms and with benefits no less
favorable than provided for Level 1 employees.
4. a. During the Term of Employment, the Executive shall be entitled to
participate, provided Executive is qualified under the terms thereof, in all
employee pension and welfare benefit plans and programs made available to the
TPA's senior level Executives or to their non-union employees generally, as such
plans or programs may be in effect from time to time, including, without
limitation, the granting of stock options, pension, profit sharing, savings,
401K (TPA shall match contributions by Executive thereto up to the first four
(4%) percent of Base Salary), and other retirement plans or programs, medical,
optical, dental, hospitalization, short-term and long-term disability and life
insurance plans, accidental death and dismemberment protection, travel accident
insurance, and any other pension or retirement plans or programs that may be
sponsored by TPA from time to time, including any plans that supplement the
above-listed types of plans or programs, whether funded or unfunded. The
Executive shall be entitled to post-retirement welfare benefits on the same
basis as other senior executives of TPA similarly situated. So long as
Executive's health does not prohibit his participation in or result in unusual
cost therefore and executive is otherwise qualified under the terms thereof, the
Executive shall be entitled during the Term of Employment to term life insurance
which, together with other life insurance under TPA's term life insurance
program, shall provide face amount coverage of no less than 3 times Base Salary,
not to exceed $1,000,000.
b. Executive shall also have free use of hotel services, health club, valet
and laundry services and executive comping privileges at such level, if any, as
TPA in its sole and absolute discretion, shall establish from time to time for
similarly situated executives, which privileges shall include, however, at the
very least, reasonable food and beverage courtesies and other amenities which
are normal for the successful completion of
Executive's duties. Until Executive finds permanent housing in the Atlantic City
area, Executive shall be provided a reasonably satisfactory room in TPA's Hotel.
c. TPA shall also promptly pay or reimburse Executive for reasonable moving
and storage expenses actually incurred by Executive in relocating to the
Atlantic City area.
d. TPA shall also promptly reimburse Executive for other actual expenses
or losses incurred by Executive directly as a result of Executive's relocation
of his personal assets and household, specifically including but not limited to
any costs of terminating Executive's apartment lease in New York City or
transfer Executive's spouse's enrollment to a University in the Philadelphia, PA
area.
e. TPA shall pay or reimburse Executive the reasonable expenses incurred by
Executive for the services of an attorney in the negotiation, preparation,
consummation, performance and enforcement of this Agreement.
f. Executive shall be entitled to four (4) weeks paid vacation per year
during Executive's employment hereunder.
g. Executive shall have secretarial assistance and any and all other
facilities which are suitable and appropriate to his position and the
performance of his duties hereunder.
h. Executive shall be entitled to reimbursement in full for all reasonable
and necessary travel and other expenses incurred in connection with the services
of Executive hereunder against presentation of an itemized account therefore.
5. Executive agrees that until the earlier of Expiration Date or the earlier
termination of this Agreement as provided herein, Executive shall not accept
employment, either as an employee, consultant or independent contractor, for or
on behalf of any other casino hotel located within a 300 miles radius of
Atlantic City, New Jersey. Executive acknowledges and agrees that this
restrictive covenant is reasonable as to duration, terms and geographical area
and that the same is necessary to protect the legitimate interests of TPA,
imposes no undue hardship on Executive and is not injurious to the public.
6. Executive hereby agrees that throughout the term of this Agreement Executive
shall devote Executive's full time, attention and efforts to TPA's business and
shall not, directly or indirectly, work for, consult with or otherwise engage in
any other activities of a business nature for any other person or entity,
without TPA's prior written consent. Executive will promptly communicate to TPA,
in writing when requested, and marketing strategies, technical designs and
concepts, and other
ideas pertaining to TPA's business which are conceived or developed by
Executive, alone or with others, at any time (during or after business hours)
while Executive is employed by TPA. Executive acknowledges that all of those
ideas will be TPA's exclusive property. Executive agrees to sign any document
which TPA deems necessary to confirm its ownership of those ideas, and Executive
agrees to otherwise cooperate with TPA in order to allow TPA to take full
advantage of those ideas.
7. Executive acknowledges that Executive will have access to information which
is proprietary and confidential to TPA. This information includes, but is not
limited to, (1) the identity of customers and prospects, (2) names, addresses
and phone numbers of individual contacts, (3) pricing policies, marketing
strategies, product strategies and methods of operation, and (4) expansion
plans, management policies and other business strategies and policies. Executive
acknowledges and understands that this information must be maintained in strict
confidence in order for TPA to protect its business and its competitive position
in the marketplace. Accordingly, both during and after termination of
Executive's employment, Executive agrees that Executive will not disclose any of
this information for any purpose or remove materials containing this information
from TPA's premises.
8. Executive hereby agrees to comply with all of the rules, regulations,
policies and/or procedures adopted by TPA during the term of this Agreement, as
well as all applicable state, federal and local laws, regulations and
ordinances.
9. Executive will apply for an appropriate casino employee license, as required
by the New Jersey Casino Control Commission to enable him to engage in his
employment hereunder. Upon receipt of such license, Executive will maintain this
license in good standing during his employment by TPA, provided that TPA shall
pay all fees as well as attorney's fees and other costs Executive may incur in
connection with the licenses, any investigation or proceeding against him or in
which he may be involved arising out of the TPA's operations conducted by the
Division of Gaming Enforcement of the Office of the New Jersey Attorney General,
by the Commission, or by any other governmental unit, including any judicial
appeals therefrom.
10. Executive hereby understands and acknowledges that TPA may terminate this
Agreement in the event Executive's Casino Control Commission license is
terminated and/or suspended for more than 30 days or revoked by the Commission
or if Executive shall commit an act constituting "Cause", which is defined to
mean the following: a breach by Executive of any of the material provisions of
this Agreement or an act of dishonesty. In the event of a termination pursuant
to this paragraph, TPA shall pay
to Executive Executive's salary earned to the date of termination and shall have
no further liability or obligation to Executive under this Agreement.
11. Executive may terminate this Agreement upon written notice to TPA at any
time for Good Cause (as hereinafter defined) which termination shall become
effective on the 30th day after such notice (the "Executive's Termination
Date"). "Good Cause" for purposes hereof means, without Executive's express
written consent, the assignment to Executive of any duties inconsistent with the
position of Executive Vice President of Hotel Operations, or the customary
duties, responsibilities, and status of such office, or a demotion, or change in
Executive's title or office, or any removal from such positions or a Change in
Control (as hereinafter defined), except in connection with the termination of
Executive's employment under Paragraph 10 hereof, permanent disability resulting
in Executive being unable to perform all essential job functions of the position
of Executive Vice President with all reasonable accommodations or as a result of
Executive's death. If Executive terminates this Agreement for Good Cause or if
TPA shall terminate Executive's employment without Cause (as defined in
paragraph 10 above), TPA shall pay Executive on the Executive's Termination Date
all compensation, reimbursements, and benefits provided for in Paragraphs 3 and
4 hereof due or accrued to the Executive's Termination Date ("Accrued
Compensation Amounts") and in a lump sum the full amount of the remaining unpaid
compensation payable under Paragraph 3 hereof from the Executive's Termination
Date through the Expiration Date (the "Termination Payment") (it being
understood, however, that Executive shall receive no less than one (1) year of
annual base salary then payable and any bonuses accrued to the date of such
terminations). "Change in Control" for the purposes of this Agreement means,
with respect to TPA or the hotel:
1. a sale or long term lease of the hotel or other substantial assets; or
2. Both the Managing General Partner's Chief Executive Officer (Xxxxxxxx
X. Xxxxx) and the Hotel President, Xxxxx Xxxxxx, are no longer
employed by TPA; provided, however, that a Change in Control shall not
entitle Executive to the "Termination Payment" if Executive accepts an
offer of or otherwise continues employment with TPA following the
occurrence of an event described in either of clause (1) or (2) above.
12. TPA shall indemnify, defend and hold Executive harmless, including the
payment of reasonable attorney fees, if TPA does not directly provide
Executive's defense, from and against any and all claims made by anyone,
including, but not limited to, a corporate entity, company, other employee,
agent, patron or
member of the general public with respect to any claim which asserts as a basis,
any acts, omissions or other circumstances involving the performance of
Executive's employment duties hereunder unless such claim is based upon
Executive's gross negligence or any willful and/or wanton act.
13. Executive represents that Executive is a citizen of the United States or
that Executive possesses the proper visa and/or work permits necessary to
perform Executive's functions hereunder.
14. Executive acknowledges that it would be extremely difficult to measure the
damages that might result from any breach by Executive of Executive's promises
in Paragraphs 5,6,7 and 8 of the Employment Contract and that a breach may cause
irreparable injury to TPA which could not be compensated by money damages.
Accordingly, TPA will be entitled to enforce this Employment Contract by
obtaining a court order prohibiting Executive (and any others involved) from
breaching this agreement. If a court decides that any part of this agreement is
too broad, the court may limit that part and enforce it as limited.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey and in any lawsuit involving this Agreement, I
consent to the jurisdiction and venue of any state or federal court located in
New Jersey. This Agreement represents the entire agreement between the parties
and may not be modified or amended without the written agreement of both
parties.
16. This Agreement may be executed in two or more counterparts.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
XXXXX PLAZA ASSOCIATES, a General Partnership
by Xxxxx Plaza Funding, Inc.
Managing General Partner Executive
BY: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. X'Xxxxxx
___________________ ________________________
Xxxxx Xxxxxx Xxxxxxx X. X'Xxxxxx
Vice President
Witness
___________________ Date: August 18, 1995
