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EXHIBIT 10.25
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Employment
Agreement") is entered into as of this 15th day of October, 1998, by and between
Xxxxxxxx Property Group Limited Partnership, a Mississippi limited partnership
("Employer"), and Mr. Xxxxxx XxXxxxx ("Employee"), and is made with reference to
the following recitals of fact:
RECITALS
WHEREAS, Employer maintains a hotel and casino facility located dockside
in Tunica County, Mississippi (the "Facility" or the "Tunica Facility");
WHEREAS, Employee and Employer have entered into an employment agreement
dated as of June 7, 1994, which was subsequently amended July 1, 1996 and
February 20, 1997 (the "Original Employment Agreement"); and
WHEREAS, Employee is the owner of a 0.144336% member interest in
Horseshoe Gaming, L.L.C. ("Horseshoe"), a limited liability company organized
under the laws of the state of Delaware, such member interest being vested
pursuant to the terms of the Original Employment Agreement; and
WHEREAS, Employer and Employee wish to amend and restate the Original
Employment Agreement and Employer desires to continue to employ Employee, and
Employee desires to continue to accept such employment, pursuant to the terms of
this Employment Agreement; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, and in consideration of the mutual
covenants, promises and agreements herein contained, the parties hereto agree as
follows:
AGREEMENT
1. Definitions. All capitalized words referenced or used in this
Employment Agreement and not specifically defined herein shall have the meaning
set forth on Exhibit A, which is attached hereto and by this reference made a
part hereof.
2. Term. This Employment Agreement shall become effective on November
___, 1998 and shall continue in effect for a period terminating October 15,
2001, unless terminated sooner by Employer or Employee pursuant to the terms set
forth herein. Employee's term of employment with Employer shall be deemed to
have commenced, for all purposes, on June 13, 1994, which is the date upon which
such employment commenced pursuant to the Original Employment Agreement (the
"Commencement Date").
3. Position to be Held by Employee. Employee is hereby employed and
hired by Employer to serve and act as the Senior Vice President-General Manager
of the Tunica Facility, and shall perform
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each and all of the duties and shall have all of the responsibilities described
herein. Employee shall at all times report directly to and take directives from
the Chief Executive Officer of Horseshoe Gaming, Inc. (the "Supervisor"). 1.
4. Duties and Responsibilities.
A. General Duties. In his capacity as Senior Vice
President-General Manager of the Tunica Facility, Employee shall have the
responsibility for overseeing the operations of the Tunica Facility and
conducting the day-to-day operations and affairs of the Tunica Facility in a
manner so as to maximize, to the best of his ability, the profitability of the
operation for and on behalf of Employer in accordance with applicable laws and
regulations. The authority of Employee to bind Employer shall be as broad or as
limited as may be determined from time to time by the Supervisor.
B. Specific Duties. Employee shall serve and act as the Senior
Vice President-General Manager of the Tunica Facility, having responsibility for
supervising and directing of the day-to-day activities and affairs of the Tunica
Facility, including, without limitation, customer relations, marketing, employee
relations, service and quality of the casino and hotel operation, service and
quality of all food and beverage facilities, cash management, compliance with
all Governmental Requirements, and all other similar functions typically
performed by a general manager of a major casino and hotel facility and such
other functions as may be delegated from time to time. In all instances,
Employee shall coordinate with and oversee the various department heads charged
with direct responsibility for various facets of the casino and hotel
operations, and assure that all such employees are performing their respective
assignments and such departments are consequently being run in a thorough,
competent, efficient and professional manner.
B. Fiduciary Duty. In every instance, Employee shall carry out
his various duties and responsibilities in a fiduciary capacity on behalf of
Employer, in an effort to maximize the profitability of the Tunica Facility. In
no event whatsoever shall Employee enter into any commitments or obligations,
written or verbal, or take any other action or omit to take any action, the
result of which would be to create a conflict of interest between Employer and
Employee, or the result of which would benefit Employee, or any person
associated with or affiliated with Employee, or in any manner involved in the
gaming industry, to the detriment of Employer.
C. Full Time Effort. Employee acknowledges and agrees that the
duties and responsibilities to be discharged by Employee require a full time
effort on the part of Employee, and accordingly, Employee agrees to devote his
full time effort and resources for and on behalf of Employer, and agrees that he
will not, during the term hereof, enter into (directly or indirectly) any other
business activities or ventures, other than investments which are passive in
nature (provided no such investment may exceed 5% of the equity securities of
any entity without the prior approval of the Board of Directors).
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D. Directives from Supervisor. In all instances, Employee agrees
to carry out all of his duties and responsibilities as set forth herein pursuant
to the guidance, directives and instructions of the Supervisor, and agrees that
at all times, his authority shall be subordinate to such Supervisor. The wishes
and directives of the Supervisor shall prevail in all matters and decisions as
to which there is a disagreement between Employee and the Supervisor, and
Employee shall carry out any and all lawful directives from the Supervisor to
the best of his ability.
5. Compensation. As compensation for the services to be rendered by
Employee pursuant to the terms of this Employment Agreement, Employee shall be
entitled to receive the following:
1. a base salary of Two-Hundred Thousand Dollars ($200,000) per
year, which may be adjusted annually by a merit increase based upon Employer's
existing policy and an annual performance appraisal of Employee (the "Base
Compensation"), payable in equal semi-monthly installments;
2. a discretionary bonus in an amount determined in accordance
with Employer's bonus plan (the "Bonus"), which bonus for each of calendar years
1998 and 1999 shall be Ninety-Five Thousand Dollars ($95,000). The Bonus for
1999 will accrue per the criteria in the Original Employment Agreement and will
be payable should the Employee leave Employer once it is accrued. For each
calendar year thereafter during the term of this Employment Agreement the Bonus
shall not exceed 50% of the Base Compensation for such year; and
3. the right to participate in any employee stock option or stock
purchase plan that may be adopted by Horseshoe for its executive level employees
and the executive level employees of its gaming subsidiaries (and possibly for
executive level employees of other gaming operations principally owned or
controlled by Xxxx X. Xxxxxx), such participation to be at a level commensurate
with that of other executives performing similar duties and at a similar
compensation level as that of Employee.
6. Fringe Benefits. It is understood and agreed that the Base
Compensation to be received by Employee is to be all-inclusive of other typical
fringe benefits provided to executives in a similar position as Employee;
provided, however, that Employee shall be entitled to the following benefits:
A. reimbursement, on an on-going basis, for all reasonable
entertainment, traveling and other similar expenses incurred in the performance
of his duties and responsibilities hereunder, such expenses to be subject to
budgets established for such purpose and the Employee's reimbursement
procedures;
B. participation in Employer's health coverage plan for Employee
and all members of his immediate family, with such plan and the terms of
Employee's participation in such plan to be on terms and conditions determined
solely by Employer;
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C. participation in such pension plans as Employer shall adopt
for all of the employees of the Tunica Facility; it being understood and agreed
that the only pension plan that Employer has adopted at this time is a Section
401(k) form of pension plan;
D. occasional use of a company vehicle as and when needed in
connection with the performance of Employee's duties and responsibilities; and
E. participation in Employer's "Paid Days Off/Vacation" policy.
7. Gaming License. Employer and Employee understand that it will be
necessary for Employee to maintain in full force and effect at all times, a
gaming license required under the provisions of applicable Mississippi law for
persons serving in a similar capacity as Employee. Accordingly, Employee agrees
to maintain such license and otherwise fully comply with all requirements of
applicable Gaming Authorities and Governmental Authorities.
8. Termination with Cause.
A. Employer may terminate Employee for "cause" as provided in
this Section 8. For purposes of this Employment Agreement, "cause" means the
occurrence of one or more of the following events:
i. the revocation, suspension or failure to renew for a
period in excess of ninety (90) days, of Employee's gaming license due to an act
or omission of Employee (or such alleged act or omission upon which the Gaming
Authorities or Governmental Authorities have based their determination to
revoke, suspend or fail to renew the Employee's gaming license;
ii. failure or refusal by Employee to observe or perform
any of the material provisions of this Employment Agreement or any other written
agreement with Employer, or to perform in a reasonably satisfactory manner all
of the material duties required of Employee under this Employment Agreement or
any other written agreement with Employer;
iii. commission of fraud, misappropriation, embezzlement
or other acts of dishonesty or conviction for any crime punishable as a felony
or a gross misdemeanor involving dishonesty or moral turpitude;
iv. unreasonable refusal or failure to comply with the
proper and lawful directives of and/or procedures established by the General
Manager, the Chief Executive Officer, of Horseshoe or the Board of Directors of
Employer or the manager of Employer (or persons of comparable position);
v. the death of Employee or the mental or physical
disability of Employee to such a degree that Employee, in
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the reasonable judgment of licensed physicians retained by Employer, is unable
to carry out all of his obligations, duties and responsibilities set forth
herein for a period in excess of sixty (60) days.
B. Termination of Employee's employment for cause under
Subsections 8(A)(iii) or 8(A)(v) above shall be effective upon notice thereof by
Employer to Employee. Termination of Employee's employment for cause under
Subsections 8(A)(i), 8(A)(ii) or 8(A)(iv) above shall be effective upon fourteen
(14) days' prior notice thereof by Employer to Employee; provided that a factual
basis for termination for cause is included within such notice of termination.
9. Termination Without Cause. Employer in its discretion may terminate
Employee at any time without cause. Following such termination of Employee's
employment without cause Employee shall continue to receive the Base
Compensation for a period of six months (payable as provided in Section 5A).
10. Consequences of Termination or Registration. Upon termination of
Employee's employment with Employer with or without cause or upon resignation of
Employee or expiration of the term of this Employment Agreement, the following
shall apply:
A. Employee shall be paid his Base Compensation through the
effective date of such termination or resignation; and
B. Upon termination of Employee by Employer without cause,
Employee shall continue to receive Base Compensation for a period of six months
as provided in Section 9; and
C. the covenant not to compete, confidentiality and
non-solicitation agreements set forth in Sections 11, 12 and 13 herein below
shall apply in the manner and to the extent set forth herein.
11. Covenant Not to Compete.
1. Covenant. During the term of this Employment Agreement and for
a period of one (1) year from and after the date of such termination of Employee
with or without cause or the resignation of Employee or the expiration of the
term of this Employment Agreement, Employee agrees that he will not directly or
indirectly, either as principal, manager, agent, consultant, officer, director,
stockholder, partner, investor, lender or employee, or in any other capacity
carry on, be engaged in or employed by or be a consultant to or to have any
financial interest in any other casino operation conducting business within one
hundred (100) miles of any Horseshoe facility. Employer and Employee agree that
such covenant not to compete has been given by Employee to Employer for full and
adequate consideration, including, without limitation, Employee's bonus
compensation and stock option plan participation described in Sections 5(B) and
(C) hereinabove.
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2. Modification. In the event that any court of competent
jurisdiction determines that the term or the business or geographic scope of the
covenant contained in Subsection 11(A) above is impermissible due to the extent
thereof, said covenant shall be modified to reduce its term, business scope or
geographic scope, as the case may be, to the extent necessary to make such
covenant valid, and said covenant shall be enforced as modified.
3. Injunctive Relief. Employee understands and agrees that it
would be difficult or impossible to ascertain the measure of damages to Employer
resulting from any breach of this covenant not to compete and that injury to
Employer from any such breach may be irreparable, and that money damages
therefor may be an inadequate remedy. Accordingly, in the event of a breach or
threatened breach by Employee of the provisions of this Section 11, Employer
shall be entitled to seek and obtain, in addition to monetary damages,
injunctive relief against Employee, in a court of competent jurisdiction,
restraining Employee from engaging in such competitive situation with Employer.
12. Disclosure of Confidential Information.
1. Definition of Confidential Information. For purposes of this
Employment Agreement, "Confidential Information" means any information that is
not generally known to the public that relates to the existing or reasonably
foreseeable business of Employer. Confidential Information includes, but is not
limited to, information contained in or relating to the customer lists, account
lists, price lists, product designs, marketing plans or proposals, customer
information, merchandising, selling, accounting, finances, knowhow, trademarks,
trade names, trade practices, trade secrets and other proprietary information of
Employer.
2. Employee Shall Not Disclose Confidential Information. Employee
will not, during the term of Employee's employment and following the termination
of this Employment Agreement, use, show, display, release, discuss, communicate,
divulge or otherwise disclose Confidential Information to any unauthorized
person, firm, corporation, association or other entity for any reason or purpose
whatsoever, without the prior written consent or authorization of Employer.
Nothing contained herein shall be interpreted or construed as restraining or
preventing Employee from using Confidential Information in the proper conduct of
services to be rendered by Employee on behalf of Employer pursuant to this
Employment Agreement.
3. Scope. Employee's covenant in Subsection12(B) above not to
disclose Confidential Information shall not apply to information which, at the
time of such disclosure, may be obtained from sources outside of Employer, or
from its agents, lawyers or accountants, so long as those sources did not
receive the information in an improper manner or against the wishes of Employer.
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4. Title. All documents and other tangible or intangible property
relating in any way to the business of Employer which are conceived or generated
by Employee or come into Employee's possession during the employment period
shall be and remain the exclusive property of Employer, and Employee agrees to
return immediately to Employer, upon its request, all such documents and
tangible and intangible property, including, but not limited to, all records,
manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,
reports, data, tables, magnetic tapes, computer disks, calculations or copies
thereof, which are the property of Employer and which relate in anyway to the
business, customers, products, practices or techniques of Employer, as well as
all other property of Employer, including but not limited to, all documents
which in whole or in part contain any Confidential Information of Employer which
in any of these cases are in Employee's possession or under Employee's control.
5. Compelled Disclosure. In the event a third party seeks to
compel disclosure of Confidential Information by Employee by judicial or
administrative process, Employee shall promptly notify Employer of such
occurrence and furnish to Employer a copy of the demand, summons, subpoena or
other process served upon Employee to compel such disclosure, and will permit
Employer to assume, at its expense, but with Employee's cooperation, defense of
such disclosure demand. In the event that Employer refuses to contest such a
third party disclosure demand under judicial or administrative process, or a
final judicial judgment is issued compelling disclosure of Confidential
Information by the Employee, Employee shall be entitled to disclose such
information in compliance with the terms of such administrative or judicial
process or order.
6. Injunctive Relief. Employee understands and agrees that the
disclosure, use or usurpation of Confidential Information would cause
significant economic detriment to the business of Employer which may be
irreparable and for which monetary damages may be an inadequate remedy.
Accordingly, Employee understands and agrees that Employer shall be entitled to
seek and obtain, in addition to monetary damages, injunctive relief against
Employee, in a court of competent jurisdiction, restraining Employee from the
disclosure, use or usurpation in any manner of any Confidential Information.
13. Non-Solicitation; Non-Hire.
A. Covenant. Employee agrees that for a period of five (5) years
from the date first above written, he will not, directly or indirectly, hire,
retain or solicit, or cause any other employer of his or any other person who
has retained Employee as a consultant or independent contractor to hire, retain
or solicit, as an employee, consultant, independent contractor or otherwise any
person who was at, or within three (3) months prior to, the date hereof, or at
any time subsequent to the date hereof shall be an employee of or consultant or
independent contractor to Employer,
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Horseshoe or any other gaming operations principally owned or controlled by Xxxx
X. Xxxxxx in a supervisory capacity.
B. Acknowledgment. Employee acknowledges that he has carefully
considered the nature and extent of the restrictions upon him and the rights and
remedies conferred upon Employer under this Section 12, and Employee further
acknowledges that the same are reasonable in time and territory and are fully
required to protect the legitimate interest of Employer and does not confer a
benefit upon the Employer disproportionate to any detriment to Employee.
C. Tolling. In the event Employee violates any legally
enforceable provision of this Section 12 as to which there is a specific time
period during which Employee is prohibited from taking certain actions or
engaging in certain activities, then the violation will toll the running of the
time period from the date of violation until the violation ceases.
D. Injunctive Relief. Employee and Employer acknowledge that the
provisions of this Section 13 are reasonable and necessary, that the damages
which would be suffered as a result of a breach or threatened breach by Employee
of this Section 13 may not be calculable, and that the award of a money judgment
to Employer for such a breach or threatened breach by Employee would be an
inadequate remedy. Consequently, Employee agrees that the provisions of this
Section 13 may be enforced by Employer by injunctive or other equitable relief,
including a temporary and/or permanent injunction (without proving a breach
therefor), and Employer shall not be obligated to post bond or other security in
seeking such relief in addition to any other remedy to which it may be entitled
in law or in equity.
14. Put Option.
A. Employer grants the right, exercisable in the discretion of
Employee by delivery of written notice to Employer, to require Employer to
purchase the Member Interest (the "Put Option").
B. In the event that Employee notifies Employer of his exercise
of the Put Option pursuant to Subsection 14(A) above, the purchase price payable
by Employer therefor (the "Purchase Price") shall equal to the current fair
market value thereof. For such purposes, the fair market value of the Member
Interest shall be determined by reference to the value of Horseshoe as
calculated for purposes of Horseshoe's stock option plan for the period
immediately preceding the notification of Employer by Employee of the exercise
of the Put Option.
C. Employer shall pay the Purchase Price in three (3) equal
principal installments, with the first payment being due on the first
anniversary of the date that is thirty (30) days after the date upon which
Employee delivers notice to Employer as to his
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exercise of the Put Option. Such obligation shall bear interest at the prime
rate of interest as quoted from time to time by the largest commercial bank (in
terms of' assets) in the State of Mississippi, and accrued but unpaid interest
shall be due and payable together with each annual principal installment.
D. Notwithstanding any other provision hereof to the contrary,
the Put Option shall terminate and be of no further force and effect at such
time as any class of equity securities of Horseshoe are registered pursuant to
the Securities Exchange Act of 1934, as amended.
15. Representations and Warranties.
A. Employee hereby represents and warrants to Employer as
follows:
B. this Employment Agreement, when executed by Employee, will not
conflict with, violate the terms of or create a default under Employee's present
employment or other similar agreements, whether oral or written;
C. Employee has never been denied a gaming application by any
Gaming Authority and Employee currently holds a Mississippi gaming license; and
D. Employee is not aware of any facts which, if known to the
Mississippi Gaming Authorities, would cause the revocation of his license.
E. Employee is unaware of any mental, physical or emotional
condition which currently affects Employee, and which might result in Employee's
being unable to carry out all of his duties obligations and responsibilities set
forth herein.
F. Employee understands and agrees that Employer is entering into
this Employment Agreement in strict reliance upon the representations and
warranties set forth herein, and that a breach of any of said representations
and warranties by Employee would constitute a default hereunder.
16. Entire Agreement. This Employment Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter set forth
herein, and supersedes any and all previous oral or written agreements,
understandings or discussions between the parties hereto with respect to the
subject matter set forth herein, including the Original Employment Agreement
(including all provisions of such agreement that by its terms survive
termination), with respect to the employment of Employee.
17. All Amendments in Writing. This Employment Agreement may not be
amended orally, but only pursuant to an instrument executed by Employer and
Employee.
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18. Arbitration. In the event of any dispute or controversy between
Employer or Employee with respect to any of the matters set forth herein, then
both Employer and Employee agree to submit such dispute or controversy to
binding arbitration, to be conducted in Las Vegas, Nevada pursuant to the then
prevailing rules and regulations of the American Arbitration Association. In
such arbitration, the prevailing party shall be entitled, in addition to any
award made in such proceeding, to recover all of its costs and expenses incurred
in connection therewith, including, without limitation, attorneys' fees.
19. Governing Laws. This agreement shall be governed and construed in
accordance with the laws of the State of Nevada.
20. Notices. Any notice required or permitted to be given in connection
with this Employment Agreement shall be given by either: (a) depositing the same
in the United States Mail, postage prepaid, registered or certified, return
receipt requested; or (b) by depositing it with a recognized overnight courier
service for delivery the following day to the other party; or (c) by facsimile
transmission, provided the other party acknowledges receipt of such
transmission. All such notices shall be deemed received as of the date of
acknowledgment of receipt by the other party. All such notices shall be
addressed to the parties at the following addresses, or to such other address as
may be provided from time to time by one party to the other:
If to Employer: Xxxxxxxx Property Group Limited Partnership
c/o Horseshoe Gaming, Inc.
0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxx
If to Employee: Mr. Xxxxxx XxXxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
21. Assignment. This Employment Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, administrators and assigns. Notwithstanding the foregoing, Employee
understands and agrees that the nature of this Employment Agreement is a
personal services agreement, and that Employer is entering into this Employment
Agreement based upon the specific services to be rendered personally by Employee
hereunder; and accordingly, Employee shall not assign, transfer or delegate in
any manner any of his duties, responsibilities or obligations hereunder.
22. No Third Party Beneficiaries. This Employment Agreement is solely
for the benefit of Employer and Employee, and in no event shall any other person
or entity be deemed or construed as a third party beneficiary of any of the
provisions or conditions set forth herein.
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23. Waiver. No waiver of any term, condition or covenant of this
Employment Agreement by a party shall be deemed to be a waiver of any subsequent
breaches of the same or other terms, covenants or conditions hereof by such
party.
24. Construction. Whenever possible, each provision of this Employment
Agreement shall be interpreted in such manner as to be effective or valid under
applicable law, but if any provision of this Employment Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Employment Agreement.
25. Withholding. Employer shall withhold from any payments due to
Employee hereunder, all taxes, FICA or other amounts required to be withheld
pursuant to any applicable law.
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IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the day and year first above written.
"EMPLOYER" XXXXXXXX PROPERTY GROUP LIMITED
PARTNERSHIP, a Nevada limited
partnership
By: HORSESHOE GP, INC., a Nevada limited
partnership
By:_____________________________________
Xxxx X. Xxxxxx, Chief Executive
Officer
"EMPLOYEE" ________________________________________
Xxxxxx XxXxxxx
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EXHIBIT A
DEFINITIONS
All capitalized terms referenced or used in this Employment Agreement
and not specifically defined therein shall have the meaning set forth below in
this Exhibit A, which is attached to and made a part of this Employment
Agreement for all purposes.
Gaming Authorities. The term "Gaming Authorities" or "Authority" shall
mean all agencies, authorities and instrumentalities of any state, nation or
other governmental entity or any subdivision thereof, regulating gaming or
related activities in the United States or the State of Mississippi, including,
without limitation, the Mississippi Gaming Commission.
Governmental Authority. The term "Governmental Authority" means the
Government of the United States, the State of Mississippi, Tunica County and any
other political subdivision in which the Casino facility is located, and any
court or political subdivision, agency, commission, board or instrumentality or
officer thereof, whether federal, state or local, having or exercising
jurisdiction over Employer or the Facility, including, without limitation, any
Gaming Authority.
Governmental Requirements. The term "Governmental Requirements" means
all laws and agreements with any Governmental Authority that are applicable to
the acquisition, development, construction and/or operation of the Casino and
the related Facilities including, without limitation, all required permits,
approvals and any rules, guidelines or restrictions created or imposed by
Governmental Authorities (including, without limitation, any Gaming Authority).
