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Exhibit 10.41
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Employment Agreement")
entered into as of July 5, 1999, by and between Horseshoe Gaming, Inc., a Nevada
Corporation ("Employer"), and Xxxxx X. Xxxxxx ("Employee").
RECITALS
WHEREAS, Employer is the Manager of Horseshoe Gaming, LLC, a Delaware
limited liability company (the "LLC"), whose subsidiaries and affiliates have
developed and are currently operating casino and hotel facilities in Tunica,
Mississippi (the "Tunica Facility"), and in Bossier City, Louisiana (the
"Bossier City Facility" and, together with the Tunica Facility, referred to as
the "Existing Facilities"), and who is party to an agreement to acquire
additional casino and hotel facilities in Hammond, Indiana (the "Xxxxxxx
Facility") and Joliet, Illinois (the "Joliet Facility" and, together with the
Hammond Facility referred to as the "To Be Acquired Facilities"); and
WHEREAS, Employer desires to employ Employee, and Employee desires to
accept such employment, pursuant to the terms of this Employment Agreement;
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 the
date first above written (the "Commencement Date") and shall continue in effect
for a period terminating March 31, 2001, unless terminated sooner by Employer or
Employee pursuant to the terms set forth herein.
3. Position to be Held by Employee. Employee is hereby employed
and hired by Employer to serve and act as the Senior Vice President-Governmental
Relations and Regulatory Compliance for Employer, and shall perform each and all
of the duties and shall have all of the
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responsibilities described herein. Employee shall at all times report directly
to and take directives from the Chief Executive Officer of Employer (the
"Supervisor") or such other executive of Employer as directed by Employer.
4. Duties and Responsibilities.
A. Duties. In his capacity as Senior Vice President of Employer,
Employee shall have the responsibility for overseeing all aspects of
Governmental Relations and Regulatory Compliance of the Existing Facilities and
the To Be Acquired Facilities, if acquired, and assisting in the opening of any
casino and hotel facilities to be developed and/or acquired by subsidiaries or
affiliates of the LLC (together with the Existing Facilities and the To Be
Acquired Facilities each referred to individually as a "Facility" and
collectively as the "Facilities") in a manner so as to maximize, to the best of
his ability, the profitability of each Facility, for and on behalf of the LLC in
accordance with all 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 or the Board of Directors of Employer (the "Board").
"). Employee acknowledges and agrees that in connection with his employment he
may be required to travel on behalf of Employer.
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 Employer. In no event
whatsoever shall Employee enter into any commitments or obligations, written or
verbal, or take or omit to take any other action, the result of which would be
to create a conflict of interest between Employer and Employee, or the result of
which would (directly or indirectly) benefit Employee, or any person or entity
associated with or affiliated with Employee, or any person or entity in any
manner involved in the gaming industry to the detriment of Employer. In all
instances, Employee shall perform his services and oversee his department(s) in
a thorough, competent, efficient and professional manner.
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.
D. Directives from the 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
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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:
A. a base salary of Two Hundred Fifty Thousand Dollars ($250,000)
per year, to be paid as follows, a one time payment of $50,000 upon the
effective date of this Agreement and the balance of $200,000 to be paid in equal
semi-monthly installments, which may be adjusted annually by a merit increase
based upon Employer's existing policy and an annual performance appraisal of
Employee and Employer and the LLC (the "Base Compensation"), which appraisals
shall be performed in a manner suitable to Employer in all respects, and which
shall be payable in equal semi-monthly installments;
B. a discretionary bonus in an amount determined in accordance
with Employer's bonus plan, as may be amended from time to time by Employer in
Employer's sole discretion, (the "Bonus"), which shall not exceed 50% of
Employee's Base Compensation at the time such Bonus is awarded; and
C. the right to participate in any employee stock option or stock
purchase plan that may be adopted by Employer for its executive level employees
and the executive level employees of its gaming subsidiaries (and, at Employer's
sole discretion, 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 Employer's reimbursement
procedures;
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B. participation in such pension plans as Employer shall adopt
for all of its employees; 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;
C. for the term of the Contract, Employer shall pay Employee an
allowance for use of one automobile in the amount of $750 per month;
D. reimbursement for the cost of maintaining a One Million Dollar
($1,000,000) term life insurance policy insuring the life of Employee provided
that Employee remains insurable at the rate generally established by major life
insurance companies for term life insurance policies for persons in good health
and the same age as Employee; and provided further that if Employee is rated in
a higher risk category said policy shall nevertheless be made available but
Employer shall only be obligated to pay the premium payable by a person in good
health and all premiums in excess of such amount shall be paid Employee; and
E. relocation expenses as set forth in a Horseshoe memorandum
dated October 6, 1996, which is attached hereto as Exhibit A and incorporated
herein.
7. Employer will provide Employee with liability insurance
coverage to the extent that such coverage is common in the industry and for
other employees at or above the level of the Employee within the Employer.
8. Gaming License.
A. Employer and Employee understand that it shall be necessary
for Employee to maintain in full force and effect at all times, gaming licenses
required by each of the various jurisdictions in which subsidiaries or
affiliates of the LLC are conducting gaming operations for persons serving in a
similar capacity as Employee. Accordingly, during the course of his employment,
Employee agrees to use his best efforts to obtain and maintain such licenses, to
fully cooperate in the investigation or investigations to be conducted in
connection therewith and otherwise to fully comply with all requirements of
applicable Gaming Authorities and Governmental Authorities.
B. Employer and Employee understand that Indiana Code 4-2-6-11
sets forth postemployment restrictions except as provided in Section 20 or 21 of
this Rule, or upon the request of the Indiana Gaming Commission (the
"commission") a restricted employee of the commission who leaves the employment
of the commission for any reason, may not without consent of the commission:
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(1) appear before the commission on any matter before the
commission or an administrative law judge appointed by the commission on behalf
of a licensee or an applicant for any license; or
(2) engage in any discussion with any commission employee
regarding any specific applicant or licensee;
for a period of one hundred eighty (180) days following the termination of the
restricted employee's employment with the commission.
C. Without the consent of the commission, a former employee or
former restricted employee may not appear before the commission on behalf of an
occupational licensee, Level 2 or 3 or an applicant for an occupational license,
Level 2 or 3 for a period of ninety (90) days. Consent to so appear may be
granted by the commission if the former employee or former restricted employee
was not involved with that specific issue during the last year of employment
with the commission. (Indiana Gaming Commission; 68 IAC 9-2-18; filed June 23,
1995, 2:30 p.m.; 18 IR 2669).
In addition to the post employment restrictions set forth in IC
4-2-6-11, a former restricted employee may not apply for:
(1) a riverboat owner's license;
(2) a supplier's license; or
(3) an occupational license, Level 1;
without the prior approval of the commission for a period of one hundred eighty
(180) days following the termination of the restricted employee's employment
with the commission. (Indiana Gaming Commission; 68 IAC 9-2-18; filed June 23,
1995, 2:30 p.m.; 18 IR 2669).
9. Termination
A. Termination With Cause. 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 any such 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 any gaming license;
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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 or the use of
illegal drugs while on duty for Employer or on premises of any Facility;
iv. unreasonable refusal or failure to comply with the
proper and lawful directives of and/or procedures established by the CEO or the
Board (or persons of comparable or senior position); and/or
v. the death of Employee or the mental or physical
disability of Employee to such a degree that Employee, in the reasonable
judgment of a licensed physician 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.
Termination of Employee's employment for cause under Subsections
8(A)(i), 8(A)(iii) or 8(A)(v) above shall be effective immediately upon notice
thereof by Employer to Employee. Termination of Employee's employment for cause
under Subsections 8(A)(ii) or 8(A)(iv) above shall be effective upon fourteen
(14) days' prior notice thereof by Employer to Employee. The factual basis for
termination for cause shall be included within any such notice of termination.
B. Termination for Cause, Resignation, or Expiration of Term.
Upon termination of Employee's employment with Employer (i) by Employer for
cause (ii) upon the resignation of Employee or (iii) upon the expiration of the
term of this Employment Agreement, all compensation as defined in Section 5
herein will cease as of the date of termination.
C. Termination Without Cause. Employer in its discretion may
terminate Employee at any time without cause upon thirty (30) days prior written
notice to the Employee. If Employee is terminated by Employer without cause,
Employee shall continue to receive for a period of time equal to the balance of
the term of this Agreement: (1) the base Compensation payable as provided in
Subsection 5(A) described herein and (2) all fringe benefits otherwise provided
to Employee shall terminate immediately and Employee shall be entitled to a pro
rata Bonus.
D Survival of Certain Covenants. The covenants not to
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compete, solicit or hire and the confidentiality agreements set forth in
Sections 10 and 11 herein below shall continue to apply beyond termination in
the manner and to the extent set forth herein.
10. Covenants Not to Compete, Solicit or Hire.
A. Covenant Not to Compete. For so long as the Employee is
receiving Base Compensation and for a period of six (6) months from and after
the last date on which any amount constituting Base Compensation is paid to
Employee, Employee agrees that he will not directly or indirectly, whether as
principal, manager, agent, consultant, officer, director, stockholder, partner,
investor, lender or employee, or in any other capacity, 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
gaming facility principally owned or controlled by Xxxx X. Xxxxxx, Employer, or
Employer's subsidiaries or related companies, including, but not limited to, the
Existing Facilities or the To Be Acquired Facilities. Employer and Employee
agree that such covenant not to compete is a condition of Employee's employment
and that the covenant not to compete has been given by Employee to Employer for
full and adequate consideration.
B. Covenant Not to Solicit or Hire. . For so long as the Employer
is receiving Base Compensation and for a period of one (1) year from and after
the last date on which any amount constituting Base Compensation is paid to
Employee, Employee agrees that 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 in a supervisory
capacity or otherwise any person who was at any time during the period
commencing on the date three (3) months prior to the Commencement Date and
ending on the date of the termination of Employee's employment hereunder, an
employee of or consultant or independent contractor in a supervisory capacity to
Employer, the LLC or any other gaming operations principally owned or controlled
by Xxxx X. Xxxxxx, Employer, or Employer's subsidiaries or related companies,
including, but not limited to, the Existing Facilities or the To Be Acquired
Facilities.
11. Nondisclosure of Confidential Information.
A. 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, acquisition
or
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growth plans or proposals, customer information, merchandising, selling,
accounting, finances, knowhow, trademarks, trade names, trade practices, trade
secrets and other proprietary information of Employer.
B. Employee Shall Not Disclose Confidential Information. Employee
will not, during the term of Employee's employment and following the termination
of this Employment Agreement, until such time as the confidential information
becomes generally known to or readily ascertainable by proper means by, the
public, 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. Mistake
or lack of knowledge as to the status of information wrongly disclosed or used
by Employer shall not serve as a defense to this Employment Agreement.
C. Scope. Employee's covenant in Subsection 11(B) above not to
disclose Confidential Information shall not apply to information which, at the
time of such disclosure, may be obtained from sources other than from Employer,
or its agents, lawyers or accountants, provided however, that such information
received is not received from sources which received the information in an
improper manner or against the wishes of Employer.
D. 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.
E. 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
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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 Employee to disclose Confidential
Information, Employee shall be entitled to disclose such information in
compliance with the terms of such administrative or judicial process or order.
12. Reasonableness of Terms. The Employer and the Employee
stipulate and agree that the terms and covenants contained in Section 10 and
Section 11 herein are fair and reasonable in all respects, including the time
period and geographical coverage in Section 10, and that these restrictions are
designed for the reasonable protection of the Employer's business and Employer's
legitimate interests therein. In the event that these restrictions are found to
be overly broad or unreasonable, the Employer and the Employee agree that such
restrictions shall be severable and enforceable on such modified terms as may be
deemed reasonable and enforceable by a court of competent jurisdiction.
13. Representations and Warranties.
Employee hereby represents and warrants to Employer, LLC and its
affiliated or related entities that:
A. the execution, delivery and performance by Employee of this
Employment Agreement will not conflict with, violate the terms of or create a
default under any other agreement by which Employee is bound, including without
limitation Employee's present employment or similar agreements, whether oral or
written;
B. no Gaming Authority or other Governmental Authority has ever
denied or otherwise declined to issue any gaming license or related
authorization applied for by Employee;
C. Employee is not aware of any facts which, if known to any
Gaming Authority or other Governmental Authority, would cause the refusal of his
application for, or renewal of, any gaming licenses required to be obtained by
Employee pursuant to Section 7;
D. Employee is not aware 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;
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E. Employee understands and agrees that Employer is entering into
this Employment Agreement in strict reliance upon the representations and
warranties of Employee set forth herein, and that a breach of any of said
representations and warranties by Employee would constitute a default hereunder;
and
14. 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 with respect to the employment of Employee.
15. All Amendments in Writing. This Employment Agreement may be
amended only pursuant to an instrument executed by Employer and Employee. It
shall not be reasonable for either Employer or Employee to rely on any oral
statements or representations by the other party that are in conflict with the
terms of this Employment Agreement.
16. Arbitration. In the event of any dispute or controversy
between Employer and Employee with respect to any of the matters set forth
herein, 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. This
provision does not in any way affect Section 23 of this Employment Agreement.
17. Governing Law. This Employment Agreement shall be governed
and construed in accordance with the internal laws of the State of Nevada. The
terms of this Employment Agreement are intended to supplement but not displace,
the parties respective rights under the Nevada Uniform Trade Secrets Act, Nev.
Rev. Stat. Xxx. 600A.010 et seq., as amended, and any similar laws adopted in
Indiana, Illinois, Mississippi or Louisiana.
18. Notices. All notices required or desired to be given under
this Employment Agreement shall be in writing and shall be deemed to have been
duly given (i) on the date of service if served personally on the party to whom
notice is to be given, (ii) on the date of receipt by the party to whom notice
is to be given if transmitted to such party by telefax, provided a copy is
mailed as set forth below on the date of transmission, or (iii) on the third day
after mailing if mailed to the party to whom notice is to be given by registered
or certified mail, return receipt requested, postage prepaid, to at the
following
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addresses, or to such other address as may be provided from time to time by one
party to the other
If to Employer: Horseshoe Gaming, Inc.
000 X. Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
If to Employee: Xx. Xxxxx X. Xxxxxx
0000 X. 000 X
Xxxxxxxxxx, XX 00000
19. 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.
20. 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 by deemed or construed as a third party beneficiary of any of
the provisions or conditions set forth herein.
21. 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.
22. 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. Without limiting the generality of the foregoing, if any
court determines that the term or the business or geographic scope of the
covenants contained in Subsections 10(A) or 10(B) is impermissible due to the
extent thereof, said covenant shall be modified to reduce its term, business
and/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.
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23. 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.
24. Injunctive Relief. Employee and Employer each acknowledge
that the provisions of Sections 10 and 11 are reasonable and necessary, that the
damages that would be suffered as a result of a breach or threatened breach by
Employee of Sections 10 and/or 11 may not be calculable, and that the award of a
money judgment to Employer for such a breach or threatened breach thereof by
Employee would be an inadequate remedy. Consequently, Employee agrees that in
addition to any other remedy to which Employer may be entitled in law or in
equity, the provisions of Sections 10 and 11 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. Employee hereby
consents to the jurisdiction of any state or federal court located in the State
of Nevada or Mississippi and hereby waives any and all objections to venue.
25. Counterparts. This Employment Agreement may be executed in
any number of counterparts, each of which shall be deemed an original but all of
which together shall constitute a single instrument.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the day and year first above written.
"EMPLOYER" HORSESHOE GAMING, INC.
a Nevada Corporation
By:
----------------------------------------
Xxxx X. Xxxxxx, Chief Executive Officer
EMPLOYEE" ----------------------------------------
Xxxxx X. Xxxxxx
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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" shall mean all
agencies, authorities and instrumentalities of any state, nation (including
Native American nations) or other governmental entity or any subdivision
thereof, regulating gaming or related activities in the United States or any
state or political subdivision thereof, including, without limitation, the
Mississippi and Louisiana Gaming Commissions.
Governmental Authority. The term "Governmental Authority" means the
governments of (i) the United States of America, (ii)the State of Mississippi,
(iii) Tunica County, (iv) the State of Louisiana, (v) Bossier City, Louisiana
and (vi) any other political subdivision of any state of the United States in
which a 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 a
Facility, and including, without limitation, any Gaming Authority.
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