Exhibit 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
the 24th day of December, 2001 by and between the Dry Creek Rancheria Band of
Pomo Indians ("Tribe") and Xxxxxxx Xxxxxx the ("Employee").
The parties hereto expressly intend that this Agreement describe
Employee's relationship as an employee of Tribe and not as a contractor,
including but not limited to the meaning of such term as is used in 25 USC ss.
2711 and 25 CFR ss. 502.15. The parties have purposefully structured the terms
and provisions of this Agreement consistent with, and in furtherance of, this
expressed intent.
l. Employment. On and subject to the terms and conditions of this
Agreement, the Tribe hereby employs Employee, and Employee hereby accepts
employment with the Tribe, as the General Manager of the Tribe's temporary
gaming facility ("Gaming Facility"), to assume overall responsibility for the
development, direction and management of the Gaming Facility. Employee shall
report to, be accountable to and work under the authority of the Tribe's Board
of Directors (the "Board") or such tribal agency or tribal entity as the Tribe
may hereafter designate, which thereafter shall be referred to herein as the
"Board".
2. Reporting. Employee shall report directly to the Board with respect
to all operations and expenditures of the Gaming Facility and otherwise to the
extent requested by the Board. Without limiting the foregoing, Employee shall
perform such executive duties as are commonly attendant upon the office of a
casino general manager and such further executive duties as may be specified
from time to time by the Board, which shall include:
(a) Overall direction of the construction and development of the Gaming
Facility;
(b) Planning and preparation for food and beverage and other services
of the Gaming Facility;
(c) Recruitment and hiring of managers, supervisors and employees of
the Gaming Facility;
(d) Pre-opening planning and preparation of training programs;
(e) Overall direction and management of employees of the Gaming
Facility, including but not limited to selecting, assigning,
re-assigning, structuring or restructuring, employing and terminating
such employees (subject to approval by the Board of any express
employment contract for a term of years), and the implementation of
personnel and wage and benefit policies established by the Board for
employees of the Gaming Facility;
1
(f) Preparation of annual operating and capital budgets and of required
modifications to such budgets, subject to the approval of the Board,
and implementation of such budgets;
(g) Development and implementation of programs for training of Tribal
members for supervisory and management positions in accordance with the
preference policies of the Tribe and the Gaming Facility;
(h) Preparation, implementation and direction of casino compliance
programs, including assurance that the Gaming Facility meets the
requirements of the Indian Gaming Regulatory Act, the Tribal-State
Gaming Compact between the Tribe and the State of California (the
"Compact"), the laws and ordinances of the Tribe and other applicable
laws as well as agreements to which the Tribe is a party.
(i) Preparation, implementation and direction of programs to assure
that the Gaming Facility meets all federal, Tribal and Compact
requirements for internal controls, including establishment and
enforcement of policies designed to maintain the integrity of all
gaming operations for the protection of the Tribe, the Board, the
Gaming Facility, its customers and the public in accordance with law
and standards in the gaming industry;
(j) Upon the direction of the Board, prepare and implement the
development of strategic plans for future development of the Gaming
Facility's business and advising and consulting with the Tribe in
regard to such plans.
3. Term. The term of this Agreement shall commence on the date of
execution of this Agreement (the "Effective Date") and shall end three (3) years
after the Effective Date, unless terminated earlier by the parties as provided
herein; provided that during the period commencing on the Effective Date and
ending sixty (60) days after the date on which the permanent financing for
development of the Gaming Facility, in an amount equal to $15,000,000, is funded
(the "Financing"), Employee understands that he is and shall be an employee
at-will. Thus, either he or the Tribe may terminate his employment at any time
during such period for any reason or no reason, and with or without notice
notwithstanding anything contained herein to the contrary. In the event the
Financing is not funded by January 15, 2002, this Agreement may be terminated,
in which case neither party will have any further obligation to the other except
to the extent, and as a matter in which Tribe shall have no interest or
liability, that Nevada Gold & Casinos ("Lender") may be obligated to Employee
with respect to such funding failure.
2
4. Full-Time Service. Employee agrees that during the term of this
Agreement unless earlier terminated, he will commit his full time and energies
to the duties imposed hereby and, further, agrees that during the term of this
Agreement he will not (whether as an officer, director, member, employee,
partner, proprietor, investor, security holder, lender, associate, consultant,
adviser or otherwise) directly or indirectly, engage in the business of the
Gaming Facility as a competitor or otherwise.
5. Compensation.
(a) Employee will be paid a base salary of Two Hundred Fifty Thousand
Dollars ($250,000.00) per annum ("Base Compensation"), subject to
applicable withholding taxes and required deductions; provided that,
during the period commencing on the Effective Date and continuing until
the date on which the Financing has been funded, Lender shall be solely
responsible for funding or causing to be funded Employee's
compensation.
(b) Base Compensation shall be paid every other workweek on the day
established by the Board for all employees of the Gaming Facility.
(c) Upon renewal of this Agreement, Employee's Base Compensation shall
be increased annually, effective on the anniversary of the Effective
Date, by five percent (5%), unless otherwise agreed in writing by both
parties.
(d) Employee will be paid an annual discretionary bonus, payable within
45 days after the end of each Contract Year, of not less than seven
percent (7%) and not more than thirty percent (30%) of Employee's Base
Compensation, based on the following criteria:
(i) Employee's success in meeting or exceeding Gaming
Facility performance criteria proposed by Employee
prior to the start of each fiscal year of the Gaming
Facility and approved by the Board;
(ii) Employee's success in establishing and implementing
all hiring, training, marketing and compliance
programs and all other programs of the Gaming
Facility with which Employee is charged with
responsibility;
(iii) Employee's demonstrated leadership skills; and
(iv) Employee's relationship with the Tribe and the Board;
3
(e) In the event the Tribe adopts a deferred compensation/pension plan,
Employee shall be entitled to such benefits, including the right to
have some or all of any bonus placed into such a deferred compensation
plan.
(f) Employee will be entitled, on the same basis as other employees of
the Tribe, to participate in and to receive benefits under any of the
Tribe's employee benefit plans, if any, as such plans may be modified
from time to time, except that Employee will be entitled to one week of
vacation in excess of the Tribe's normal vacation policy for employees
of the Gaming Facility.
(g) The Tribe will reimburse Employee all reasonable and necessary
business expenses incurred on behalf of his employment during the
performance of his duties under this Agreement, subject to such
reasonable policies as may be established by the Board from time to
time and any record-keeping and other requirements as may be necessary
or appropriate to comply with the Internal Revenue Code. All claims for
expense reimbursement shall be supported with documentation
substantiating such expense.
(h) In order to defray the expense to Employee and his family while
Employee secures living accommodations in the Sonoma County area, the
Tribe shall pay, for a period not to exceed three (3) months, a housing
allowance of $1,500. Payments shall commence upon execution of this
Agreement.
(i) Employee will have the right to be reimbursed for any legal fees
incurred as the result of defending himself in any third party lawsuit
arising out of Employee's obligations under this Agreement; provided
that all such defenses shall be managed and controlled by Tribe and
with counsel reasonably approved by Tribe. Errors and omissions
insurance or appropriate indemnification arrangements will be made with
Employee in conjunction with such arrangements made for all members of
the Board.
(j) The Tribe will reimburse Employee his reasonable expenses of moving
his family as well as his and his family's household effects from their
current residence in Arizona, but not to exceed the sum of $10,000. All
claims for expense reimbursement shall be supported with proper
vouchers and detail.
6. Licensing Issues. Employee represents to Tribe that he is eligible
and suitable for a license and background clearance under the Tribe's and
State's licensing authority. Employee agrees to timely apply for any license(s)
as may be required pursuant to the Compact, the Tribe's gaming ordinances or
otherwise required by law, as may be necessary to enable him to engage in his
employment hereunder. The Tribe shall pay all costs associated with licensing.
Employee will maintain such licenses in good standing as a continuing condition
of his employment by Tribe.
4
7. Termination.
(a) Employee may be terminated prior to the Termination Date by Tribe
only under the following circumstances:
(i) Upon termination, revocation or disapproval of any
license required by law to be held by Employee to
perform as General Manager of the Gaming Facility or
if any event renders it unlawful for the Tribe to
continue to conduct casino gaming on the reservation;
or
(ii) Employee shall commit an act constituting "Cause",
Cause being defined as (a) an act of intentional
dishonesty against the Tribe or the Gaming Facility;
(b) conviction of any criminal charge involving moral
turpitude; (c) the deliberate or intentional refusal
by Employee (except by reason of disability) to
perform his duties hereunder; (d) gross negligence in
the performance of his duties hereunder; or, (e)
failure to perform his duties in a manner consistent
with his professional obligations after prior
sufficient verbal and written warnings; or
(iii) Employee shall die; or
(iv) The Tribe shall for any reason cease to conduct its
gaming operations; or
(v) Employee shall become unable to perform the duties
and responsibilities set forth in this Agreement by
reason of long-term physical or mental disability,
defined as a period of disability that exceeds six
(6) months;
(vi) Either party shall give the other party hereto ninety
(90) days' written notice of Employee's resignation
or termination.
(b) If Employee's employment should be terminated under paragraphs 7
(a)(i), (a)(ii) or (a)(vi) above (provided that this subparagraph (b)
shall only apply to paragraph 7 (a)(vi) to the extent that Employee has
resigned), then Tribe shall within ten (l0) days of such termination
pay Employee the Base Compensation to the date Employee is terminated,
whereupon Tribe shall have no further liability or obligation to
Employee under this Agreement.
(c) If Employee is terminated under paragraphs 7 (a)(iii), (a)(iv),
(a)(v) or (a)(vi) (provided that this subparagraph (c) shall only apply
to paragraph 7 (a)(vi) to the extent that Tribe has terminated
Employee), the Tribe shall pay to Employee his salary for a period of
three (3) months from the date of termination and he shall be eligible
for all employee benefits during that three-month period, pro-rated to
that period and shall receive as bonus compensation an amount equal to
25% of the prior year's bonus payable at the end of the three-month
period. Employee shall be paid all amounts due him at the time of
termination when they would otherwise be paid, including the pro rata
share of the bonus for the year in which the termination occurred.
5
(d) Upon the payment of all or any part of the compensation provided
for in this paragraph 7, or its mitigation under this paragraph, the
Tribe will have no further liability or obligation to Employee under
this Agreement or arising from the employment relationship except that
obligation provided for in this paragraph 7.
(e) Employee will be liable in damages to the Tribe for all losses and
expenses incurred by Tribe if he terminates his employment for any
reason not authorized herein, with the exception of termination by
written notice agreed to by both parties. Any such unauthorized
termination by Employee will constitute a waiver by Employee of all
claims against the Tribe and the Gaming Facility except for Base
Compensation to the date of his termination.
8. Confidentiality of Proprietary Information. Any information acquired
by Employee while in the employ of the Tribe related to employee lists, patron
lists, marketing plans, operating procedures and other information proprietary
to the Tribe or the Gaming Facility are acknowledged by Employee to be
confidential information belonging to the Tribe, and Employee shall not disclose
such information without the express written authorization of the Tribe except
in the ordinary course of the business of the Gaming Facility. Employee shall,
upon termination of this Agreement for any reason whatsoever, turn over to the
Tribe any and all copies he may have of employee lists, patron lists, marketing
programs, operating procedures and other information proprietary to the Tribe or
the Gaming Facility. Employee acknowledges that employee lists, patron lists,
marketing programs, operating procedures and other information proprietary to
the Tribe or the Gaming Facility are confidential and proprietary information
belonging to the Tribe and the Tribe may exercise any and all remedies available
to it at law or in equity to enforce this Agreement with respect to
non-disclosure of any such proprietary information to which Employee has or will
become privy while an employee of Tribe. Particularly, the parties agree that,
because of the nature of the subject matter of this paragraph 8, in event of a
threat or danger of disclosure of such information, it could be extremely
difficult to determine the actual damages suffered or to be suffered by Tribe in
the event of a breach of this Agreement by Employee. Accordingly, Tribe shall be
entitled to injunctive relief (both temporary and permanent), it being
acknowledged and agreed that any such actual or threatened breach will cause
irreparable injury to Tribe and that money damages alone will not provide an
adequate remedy to Tribe. Notwithstanding the foregoing, Tribe also shall be
entitled to money damages for any loss suffered or to be suffered as a
consequence of Employee's breach of this Agreement. The parties acknowledge that
this provision shall survive the termination of this Agreement.
6
9. Assignment. This Agreement may be assigned by the Tribe to any
entity formed by the Tribe for the express purpose of operating the Gaming
Facility and any related economic development activities. This Agreement
contemplates the personal services of Employee, and neither this Agreement nor
any of the rights herein granted to Employee or the duties assumed by him
hereunder may be assigned by him.
10. Miscellaneous.
(a) Employee represents to Tribe that there are no restrictions to
which he is subject or agreements to which he is a party that would be
violated by his execution of this Agreement and his employment
hereunder.
(b) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the Dry Creek Rancheria and
the State of California.
(c) No amendment to this Agreement or any attempted waiver of a
provision of this Agreement shall be effective unless in writing and
signed by the parties to this Agreement.
(d) Any controversy that arises between Employee and the Tribe
regarding the rights, duties or liabilities hereunder of either of
them, shall be settled by binding arbitration under the Uniform
Arbitration Act as adopted by the State of California or other forums
for Tribal dispute resolution such as Peace Court or Elder's Counsel,
to the extent only of the enforcement of the arbitration and any
arbitration award as provided for herein. In the case of binding
arbitration, it shall be conducted, upon the request of either party
before three (3) arbitrators (unless the parties agree to one (l)
arbitrator) designated by the American Arbitration Association and in
accordance with the rules of such association, except as such rules may
contemplate state court jurisdiction. The arbitrators designated to act
under this Agreement shall make their award in strict conformity with
such rules and shall have no power to depart from or change any of the
provisions thereof except as provided herein. The Tribe on behalf of
itself and the Gaming Facility waives its sovereign immunity from suit
by Employee and hereby consents to be sued in any authorized Tribal
forum, or the Federal District Court for the Northern District of
California and all appellate courts related thereto, or in the event
such courts lack subject matter jurisdiction in the courts of the State
of California and all appellate courts related thereto, for the sole
and limited purpose of enforcing Tribe's obligations to Employee under
this Agreement should an action be commenced to compel arbitration,
provide injunctive relief prior to arbitration or enforce an
arbitration award.
7
EFFECTIVE as of the date first written above.
DRY CREEK RANCHERIA BAND OF POMO INDIANS (Attach Board resolution)
By: /s/ Xxxxxxxxx Xxxxx XxXxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxx XxXxxxx
-----------------------------
Its: Tribal Chairperson
------------------------------
EMPLOYEE
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
Nevada Gold & Casinos, Inc., "Lender" hereunder, hereby expressly agrees to the
terms of the foregoing Agreement solely to the extent such terms relate to
Lender, specifically in respect of Lender's affirmative obligations as set forth
in paragraph 5(a) hereof, and, Lender further agrees that any moneys paid by
Lender to Employee pursuant to obligations arising from a funding failure as
described in paragraph 3 hereof shall not be deemed a Development Advance, as
such term is defined in that certain Development and Loan Agreement dated as of
August 26, 2001 between Tribe and Dry Creek Casino, LLC, of which Lender is a
member, and Tribe shall have no liability therefor.
NEVADA GOLD & CASINOS, INC., a
Nevada corporation
By: /s/ Xxxxxx Xxxx
------------------------------
H. Xxxxxx Xxxx
President
8
