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EXHIBIT 10.24
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Employment Agreement")
entered into as of the twenty-third day of November, 1998, by and between
Horseshoe Gaming, Inc., a Nevada Corporation ("Employer"), and Xxxxx Xxxxxxxx
("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 "Hammond
Facility") and Joliet, Illinois (the "Joliet Facility" and, together with the
Hammond Facility referred to as the "To Be Acquired Facilities");
WHEREAS, Employer and Employee are parties to an employment agreement
dated as of October 1, 1995, (the "Original Employment Agreement) which is due
to expire September 30, 1998; and
WHEREAS, 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 in furtherance of such desire Employer and Employee
wish to amend and restate the Original Employment Agreement; and
WHEREAS, Employee is the owner of a certain 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.
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 December 1, 2002, unless terminated sooner by Employer or
Employee pursuant to the terms set forth herein.
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3. Position to be Held by Employee. Employee is hereby employed and
hired by Employer to serve and act as Senior Vice President and General Manager
of the Bossier Facility, and shall perform 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 Operating Officer of
Employer (the "Supervisor").
4. Duties and Responsibilities.
A. Duties. In his capacity as Senior Vice President an General
Manager of the Bossier Facility, Employee shall perform in accordance with all
applicable laws and regulations, such duties as may be assigned to him from time
to time by the Supervisor. 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").
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 Bossier Facility. 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
associated with or affiliated with Employee, or 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 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 Employer.
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
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.
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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 Eight Thousand Dollars ($208,000)
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;
B. a discretionary bonus in an amount determined in accordance
with Employer's bonus plan (the "Bonus"), which shall not exceed 50% of
Employee's Base Compensation at the time the Bonus is awarded;
C. a one-time signing bonus of Eighteen Thousand Dollars
($18,000) payable to Employee no later than ten (10) business days following the
execution of this Employment Agreement (the "Signing Bonus"). In the event
Employee terminates his employment with Employer at any time prior to twelve
(12) months from the date of execution of this Employment Agreement, employee
agrees to repay a fraction of the Signing Bonus, the denominator of which is 12
and the numerator of which is equal to the number of months of the 12 month
period remaining upon termination of Employee's employment with Employer; and
D. 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 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;
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; and
C. participation in such pension plans as Employer shall adopt
for all of the employees of the Bossier Facility; it being understood and agreed
that the only pension plan that
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Employer has adopted at this time is a Section 401(k) form of pension plan; and
D. participation in Employer's "Paid Days Off/Vacation" policy.
7. Gaming License. Employer and Employee understand that it may be
necessary for Employee to maintain in full force and effect at all times, a
Louisiana gaming license required for persons serving in a similar capacity as
Employee. Accordingly, during the course of his employment, Employee agrees to
maintain such license and otherwise to fully comply with all requirements of
applicable Gaming Authorities and Governmental Authorities.
8. Termination.
1. 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;
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 the Bossier facility
or any other facility of Employer;
iv. unreasonable refusal or failure to comply with the
proper and lawful directives of and/or procedures established by the Supervisor
or the Board (or persons of comparable 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
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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)(i), 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)(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.
C. Termination Without Cause. Employer in its discretion may
terminate Employee at any time without cause.
9. Consequences of Termination or Resignation. Upon termination of
Employee's employment with Employer (i) by Employer with or without cause (ii)
upon the resignation of Employee or (iii) upon the 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;
B. If Employee is terminated by Employer without cause, Employee
shall continue to receive the Base Compensation for a period of six (6) months
(payable as provided in Subsection 5(A)); and
C. the covenants not to compete, solicit or hire and the
confidentiality agreements set forth in Sections 10 and 11 herein below shall
apply in the manner and to the extent set forth herein.
10. Covenants Not to Compete, Solicit or Hire.
A. Covenant Not to Compete. During the term of this Employment
Agreement and for a period of six (6) months from and after the date of
termination of Employee's employment with Employer by Employer with or without
cause, upon the resignation of Employee or upon 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 gaming facility principally owned or controlled by
Xxxx X. Xxxxxx unless such gaming facility is located in Las Vegas, Reno, Lake
Tahoe or Atlantic City.
B. Covenant Not to Solicit or Hire. During the term of this
Employment Agreement and for a period of one (1) year from and after the date of
termination of Employee's employment with Employer by Employer with or without
cause or upon the resignation
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of Employee or upon the expiration of the term of this Employment Agreement,
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.
C. Acknowledgment. Employee acknowledges that he has carefully
considered the nature and extent of the restrictions imposed upon him and the
rights and remedies conferred upon Employer under this Section 10, and Employee
further acknowledges that the same are reasonable in time and scope are fully
required to protect the legitimate interests of Employer and do not confer a
benefit upon Employer disproportionate to any detriment to Employee.
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, 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, 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.
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 outside of Employer, or
from its agents, lawyers or accountants, so long as those sources did not
receive the
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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 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. 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 12(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.
13. Representations and Warranties.
Employee hereby represents and warrants to Employer 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;
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;
E. 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; and
F. Employee has received and reviewed Employer's "Paid Days
Off/Vacation" policy and understands its terms.
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 not be
amended orally, but only pursuant to a written instrument
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executed by Employer and Employee and 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.
18. 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: Horseshoe Gaming, Inc.
000 X. Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
If to Employee: Xx. Xxxxx Xxxxxxxx
000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
18. 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.
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19. 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.
20. 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.
21. 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 and/or
business 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.
22. 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.
23. 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 waives any and
all objections he may have and consents to the jurisdiction of any state or
federal court located in the State of Nevada or Louisiana and hereby waives any
and all objections to venue.
24. 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.
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"EMPLOYER" HORSESHOE GAMING, INC.
a Nevada Corporation
By: _________________________________________
Xxxx X. Xxxxxx, Chief Executive Officer
"EMPLOYEE" _________________________________________
Xxxxx Xxxxxxxx
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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.
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 a Facility
including, without limitation, all required permits, approvals and any rules,
guidelines or restrictions created or imposed by any Governmental Authority
(including, without limitation, any Gaming Authority).
