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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of this 12th day of November, 1996, by
and between Black Hawk Gaming & Development Company, Inc., a Colorado
corporation ("Black Hawk"), and Xxxxxxx X. Xxxxx ("Executive").
1. TERM. Black Hawk agrees to employ Executive, and Executive
agrees to serve Black Hawk, on the terms and conditions of this Agreement for a
three (3) year period (such period, subject to earlier termination as provided
herein, being referred to as the "Period of Employment") commencing as of
November 12, 1996 (the "Commencement Date").
2. DUTIES AND SERVICES. During the Period of Employment,
Executive agrees to serve Black Hawk as President, to oversee acquisitions, new
projects and opportunities and to serve in such other offices and directorships
of Black Hawk and of its subsidiaries and related companies (collectively,
"Affiliates") to which he may be elected or appointed, and to perform the
duties listed on Exhibit A and such other reasonable and appropriate duties as
may be requested of him by the Chief Executive Officer or the board of
directors of Black Hawk (the "Board of Directors"), in accordance with this
Agreement and in compliance with all applicable laws and regulations. In the
performance of his duties, Executive shall be subject to the direction of the
Chief Executive Officer and the Board of Directors. Excluding periods of
vacation and sick leave to which Executive is entitled, Executive shall devote
such time, energy, and skill to the business and affairs of Black Hawk and its
Affiliates and to the promotion of their interests as is necessary to perform
the duties required of him by this Agreement. The principal place of
performance by Executive of his duties hereunder shall be in Boulder, Colorado
or at such other location as may be mutually agreed upon by Black Hawk and
Executive, but Executive may be reasonably required to travel outside that area
in the performance of Executive's responsibilities.
3. COMPENSATION.
(a) Base Salary and Additional Payment. As compensation
for his services under this Agreement, Black Hawk shall pay Executive
commencing November 12, 1996 and thereafter, during the Period of Employment,
annual base salary in the amount of $125,000 in accordance with Black Hawk's
normal payroll practices (the "Base Salary").
(b) Bonus. During the Period of Employment, Executive
shall be entitled to such bonuses and other benefits as the Compensation
Committee or the Board of Directors may periodically award in its discretion.
Nothing contained herein shall preclude Executive from participating in the
present or future employee benefit plans of Black Hawk or of any Affiliate,
including without limitation any pension plan, profit-sharing plan, savings
plan, or stock option plan. Specifically, Executive shall be a participant in
Black Hawk's 1996 Incentive Stock Option Plan.
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(c) Health Insurance. During the Period of Employment,
provided eligibility requirements are met, Executive shall be entitled to
family health insurance coverage, at Black Hawk's expense, under Black Hawk's
current health insurance plan or any successor plan thereto.
(d) Fringe Benefits. Executive shall receive employment
fringe benefits no less favorable than those made available to Black Hawk's
most senior executives.
(e) Expenses. All travel and other expenses incident to
the rendering of services by Executive under this Agreement shall be paid by
Black Hawk. If any such expenses are paid in the first instance by Executive,
Black Hawk shall reimburse him therefor on presentation of the appropriate
documentation required by the Internal Revenue Code and Regulations or
otherwise required under Black Hawk policy in connection with such expenses.
(f) Vacation. Executive shall be entitled to paid
vacation, to be taken at times mutually satisfactory to Executive and the Chief
Executive Officer of Black Hawk, for such periods of time as permitted for
Black Hawk's most senior executives.
4. EARLY TERMINATION.
(a) Termination for Cause or Death and Disability.
Notwithstanding the provisions of Section 1, Executive may be discharged by
Black Hawk for Cause (as defined in Section 4(c), in which event the Period of
Employment shall terminate and Black Hawk shall have no further obligation or
duties under this Agreement, except for obligations accrued under Section 3 at
the date of termination. In addition, the Period of Employment shall terminate
upon the earliest to occur of the following events: (i) the death of Executive,
or (ii) at the election of the Board of Directors (subject to the Americans
With Disabilities Act), the inability of Executive by reason of physical or
mental disability to continue the proper performance of his duties hereunder
for a period of 180 consecutive days.
(b) Other Termination. If (i) Executive is discharged by
Black Hawk other than for Cause and other than because of death or physical or
mental disability under Section 4(a), or (ii) Executive terminates employment
with Black Hawk for "good reason" (as defined in Section 4(d)), Executive shall
have no further obligations or duties under this Agreement; provided, however,
that Executive shall continue to be bound by the provisions of Section 5. If
the Period of Employment is terminated pursuant to the preceding sentence,
Black Hawk shall, in addition to paying the obligations accrued under Section 3
at the date of termination, (i) continue to pay Executive the Base Salary
otherwise payable to him under Section 3(a) for one year or the remaining
Period of Employment, whichever is shorter (the "Continuation Period") and (ii)
continue to provide the health insurance coverage described in Section 3(c)
during the Continuation Period.
(c) Cause. For purposes of this Agreement, cause
("Cause") shall be deemed to exist only (i) on Executive's consistent refusal
to substantially perform, or willful misconduct
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in the substantial performance of, his duties and obligations under this
Agreement, (ii) on the material breach by Executive of this Agreement, or (iii)
on the revocation or suspension of any license necessary for Executive to
perform under this Agreement, in all cases, following written notice from Black
Hawk to the Executive and the Executive's failure to cure the events described
in such notice within thirty (30) days following receipt of such notice by the
Executive.
(d) Good Reason. For purposes of this Agreement, the
term "good reason" means (i) the assignment to Executive of any duties or
responsibilities that in Executive's reasonable judgment are inconsistent in
any respect with Executive's position (including status, offices, titles, and
reporting requirements), authority, duties, or responsibilities as contemplated
by Section 2, or any other action by Black Hawk that in Executive's reasonable
judgment results in a substantial diminishment in such position, authority,
duties, or responsibilities; (ii) Black Hawk's requiring relocation of
Executive, without his prior written consent, to a place of employment other
than in Colorado, except for travel reasonably required in the performance of
Executive's responsibilities; or (iii) Black Hawk's failure to substantially
comply with the provisions of Section 3 of this Agreement.
5. CONFIDENTIALITY
(a) Confidential Material. Black Hawk and Executive
acknowledge that the services to be performed by Executive under this Agreement
are unique and extraordinary and that, as a result of such employment,
Executive will possess confidential information, proprietary information, and
trade secrets (collectively, "Confidential Material") relating to the business
practices of Black Hawk and its Affiliates. Executive agrees that he will not,
directly or indirectly, (i) disclose to any other person or entity either
during or after his employment by Black Hawk, or (ii) use, except during his
employment by Black Hawk in the business and for the benefit of Black Hawk or
any of its Affiliates, any Confidential Material acquired by Executive during
his employment by Black Hawk, without the prior written consent of Black Hawk.
On termination of his employment with Black Hawk for any reason, Executive
agrees to return to Black Hawk all tangible manifestations of Confidential
Materials and all copies thereof. All programs, ideas, strategies, approaches,
practices, or inventions created, developed, obtained, or conceived of by
Executive prior to or during the term thereof, and all business opportunities
presented to Executive during the term hereof by reason of his engagement by
Black Hawk shall be owned by and belong exclusively to Black Hawk, provided
that they are related in any manner to its business or that of any of its
Affiliates. Executive shall (i) promptly disclose all such programs, ideas,
strategies, approaches, practices, inventions, or business opportunities to
Black Hawk and (ii) execute and deliver to Black Hawk, without additional
compensation, such instruments as Black Hawk may require from time to time to
evidence its ownership of any such items.
(b) Injunctive Relief. Executive agrees that the remedy
at law for any breach by him of this section will be inadequate and that Black
Hawk shall be entitled to injunctive relief.
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6. MISCELLANEOUS.
(a) Notices. All notices given under this Agreement must
be in writing and must be delivered, sent by facsimile transmission, or sent by
certified mail, postage paid, return receipt requested, to the following
addresses or to such other addresses as the parties may designate in writing:
If to Black Hawk: Black Hawk Gaming &
Development Company, Inc.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Chief
Executive Officer
Fax No.: (000) 000-0000
If to Executive: Xxxxxxx X. Xxxxx
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Fax No.:
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Such notices shall be effective on delivery if delivered in person and either
on actual receipt or three days after mailing, whichever is earlier, if
delivered by mail or by facsimile .
(b) Parties in Interest. This Agreement shall be binding
upon and inure to the benefit of Executive, and it shall be binding upon and
inure to the benefit of Black Hawk and any corporation succeeding to all or
substantially all of the business and assets of Black Hawk by merger,
consolidation, purchase of assets or otherwise.
(c) Entire Agreement. This Agreement contains the entire
agreement between the parties and supersedes all other oral and written
agreements concerning the same subject matter.
(d) Governing law. This Agreement shall be governed by
Colorado law.
(e) Severability. If any provision is unenforceable for
any reason, it shall be deemed stricken from the Agreement but shall not
otherwise affect the intention of the parties or the remaining provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
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BLACK HAWK GAMING &
DEVELOPMENT COMPANY, INC.
By: /s/ XXXXXX X. XXXXXXXX /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Its: Chairman of the Board
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EXHIBIT A
DUTIES
o Work with Chief Executive Officer and others to develop new projects
for Black Hawk.
o Review and analyze expansion opportunities:
o assist with potential financing with investment bankers
o assist in structuring acquisitions and identifying accounting
and legal issues and working with attorneys and accountants to
resolve such issues
o identify public company reporting issues
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