EXHIBIT 10.8
MISSISSIPPI BAND OF CHOCTAW INDIANS
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of December 1, 1999, by and
between XXXXXXX XXXXXXXX (hereinafter called "Executive") and the Mississippi
Band of Choctaw Indians d/b/a CHOCTAW RESORT DEVELOPMENT ENTERPRISE
(hereinafter called "Employer").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
Section 1. DUTIES OF EXECUTIVE:
Employer hereby employs Executive as CHIEF EXECUTIVE OFFICER of SILVER STAR
RESORT AND CASINO on the terms and conditions hereinafter stated. Executive
hereby agrees that during the term of his employment hereunder, he will
faithfully, industriously and to the best of his ability and experience
perform all duties that may be required of him by virtue of his position as
CHIEF EXECUTIVE OFFICER of SILVER STAR RESORT AND CASINO to the reasonable
satisfaction of the Board of Directors of Employer and in accordance with all
applicable laws and regulations. The employment pursuant to this Agreement
shall be considered full-time employment, such that Executive shall devote
necessary time, attention and energy to Employer's business and shall not
during the term of this Agreement accept other employment for gain or profit
without the prior written consent of Employer. However, the acceptance of
full-time employment under this Agreement will not restrict Executive from
making investments in other business enterprises, (so long as such other
businesses do not compete with Employer and do not violate any conflict of
interest restrictions of the Employer). The Executive shall refrain during
the term of this Agreement from using his official authority or influence for
the purpose of affecting the result of a Tribal election or legislation, and
he shall not knowingly solicit, accept or make a political contribution for
the purpose of affecting the result of a Tribal election or legislation. This
shall not be construed to prohibit Executive from making recommendations or
expressing his opinions on matters related to his duties as CHIEF EXECUTIVE
OFFICER of SILVER STAR RESORT AND CASINO. On or before May 1, 2000, Executive
shall submit to the Board of Directors of Employer for their approval a six
(6) year performance goals report and the report shall be updated on at least
an annual basis thereafter during the term of this Agreement. The report
shall be "bottom line" oriented and shall further address other good business
practices, including but not limited to strategic planning, expansion,
employee training and career enhancement for the Tribal members employed by
Silver Star Resort and Casino.
Section 2. COMPENSATION:
(a) BASE SALARY. Employer agrees to pay to Executive as compensation
for the services to be performed by him during the term of his
employment hereunder, a base salary at the rate of $400,000.00 per
annum subject to increase as determined by the Board of Directors of
the Employer during the term of this Agreement. At the
end of the third year of this Agreement, the Board of Directors of
the Employer shall review the base salary of Executive and shall
increase the base salary of Executive solely in the discretion of
the Board of Directors of the Employer based on the attainment of
performance goals, which goals shall be established by the
Executive in conjunction with the Board of Directors of the
Employer. In the event the base salary of the Executive is
increased, the increased base salary shall be effective October 1,
2002. Any increase in base salary shall also increase the
compensation cap of Section 2.(c). Such base salary shall be
payable in equal monthly installments throughout the term of this
Agreement, or in such other installments as shall be agreed to by
the parties.
(b) INCENTIVE BONUS. The Employer shall pay Executive an annual
incentive bonus based on two percent (2%) of the base amount. The
base amount shall be the net earnings of Silver Star Resort and
Casino before incentive bonus less the sum of One Hundred Thirty-five
Million Dollars ($135,000,000.00) and exclusive of interest
attributable to loans paid by SILVER STAR RESORT AND CASINO which are
not a part of the budget submitted by Executive or specially approved
by the Tribal Council upon the recommendation of the Executive and
exclusive of interest or expense attributable to the Termination
Agreement entered into with XXXX GAMING CORPORATION on October 10,
1999. The first year's incentive bonus shall be paid within ninety
days after the annual final audited amounts are determined for fiscal
year 2000. The first year's bonus shall be computed beginning
February 1, 2000. Thereafter each annual bonus shall be paid within
ninety days after the final audited amounts are determined. The first
year's incentive bonus for the year ending September 30, 2000, shall
be calculated based on two percent (2%) of net earnings for the
period February 1, 2000 through September 30,2000, less eight
twelfths (8/12ths) of One Hundred Thirty-five Million Dollars
($135,000,000.00). Eight twelfths (8/12ths) of One Hundred
Thirty-five Million Dollars ($135,000,000.00) is Ninety Million
Dollars ($90,000,000.00).
(c) COMPENSATION CAP. During the term of this Agreement, the total
base salary and incentive bonus payable to Executive shall be subject
to a compensation cap as follows:
FYE 09/30 Base Salary Incentive Bonus Total
--------- ----------- --------------- -----
2000 333,333 316,667 650,000
2001 400,000 300,000 700,000
2002 400,000 350,000 750,000
2003 400,000 400,000 800,000
2004 400,000 400,000 800,000
2005 400,000 400,000 800,000
(d) FRINGE BENEFITS. Employer shall provide Executive those fringe
benefits offered by the Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise, including but not limited to,
health care and retirement benefits, travel and other business
expenses and leave time provided regular
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full-time executive employees. In addition, Employer shall provide
Executive with the following benefits during the term of
employment as CHIEF EXECUTIVE OFFICER of SILVER STAR RESORT AND
CASINO.
1. Employer shall provide Executive with a relocation
allowance of $80,000.00 for all relocation expenses of
Executive. One half (1/2) of such relocation allowance
shall be paid on January 1, 2000 and the balance shall be
paid within ten (10) days after Executive provides written
notice of the closing of the sale of Executive's home in
Memphis, Tennessee.
2. Employer shall provide Executive with the use of an
automobile, owned by Employer, with such automobile to be
traded every three (3) years or sooner with the approval
of the Board of Directors of Employer. Insurance, upkeep
and maintenance, and gas for the automobile provided
Executive shall be paid by Employer.
3. Employer shall pay all reasonable costs associated
with the licensing of the Executive.
Section 3. TERM AND RENEWAL:
(a) The term of this Agreement shall commence on December 1, 1999,
and end on September 30, 2005, unless automatically renewed pursuant
to Section 3(b) or unless sooner terminated in accordance with
Section 4.
(b) On the expiration date and each subsequent annual anniversary
date thereafter, this Agreement shall automatically renew each year
for an additional one-year term, unless either party provides the
other party with a written notice of nonrenewal at least thirty (30)
days prior to the September 30, 2005, expiration date or the annual
anniversary dates thereafter.
Section 4. TERMINATION:
(a) MUTUAL AGREEMENT. This Agreement may be terminated at any time
upon the mutual written agreement of the parties.
(b) DISABILITY. If Executive is unable to perform his duties
hereunder due to illness or disability for a period of ninety (90)
consecutive days, then Employer may at its option hire a replacement
and/or terminate this Agreement, and Employer shall pay salary and
bonus earned through the effective date of termination and any
benefits that have vested prior to such termination.
(c) DEATH. If Executive dies during the term of this Agreement, this
Agreement shall automatically terminate, and Employer shall pay to
the estate of Executive any portion of the salary and bonus earned by
Executive and any benefits that have vested in Executive pursuant to
this Agreement prior to termination. Employer shall procure and
maintain level premium term life insurance on the life of the
Executive with an insurer selected by Employer in an amount at least
equal to the base salary of
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Executive as set forth in Section 2 of this Agreement, provided,
however, in the event Executive is or becomes uninsurable,
Employer shall be under no obligation to obtain insurance coverage
on the life of the Executive. Employer shall pay the normal and
customary premium for such life insurance and, in the event the
normal and customary premium is insufficient to maintain such life
insurance coverage as a result of a condition affecting the
insurability of Executive, Executive shall pay any amount of
premium in excess of the normal and customary premium for such
life insurance. Upon the death of the Executive, an amount equal
to the base salary of Executive shall be paid to the Estate of the
Executive. In the event Employer elects to obtain insurance on the
life of the Executive in excess of an amount equal to the base
salary of Executive, Employer shall pay all premiums attributable
to such excess life insurance coverage and all insurance proceeds
in excess of the base salary of Executive shall be paid to
Employer on the death of Executive. Executive shall execute any
and all documents and perform any and all actions required by
Employer or insurer in order to obtain and maintain the life
insurance coverage on the life of the Executive.
(d) EMPLOYER UNILATERAL TERMINATION OR NONRENEWAL. Employer may
immediately terminate the employment of Executive pursuant to this
Agreement upon a majority vote of the Board of Directors of Employer
in the event (i) Executive is convicted of any felony, (ii) Executive
violates this Agreement, Employer Bylaws, or Tribal, state or federal
laws or regulations relating to Employer operations that would result
in any gaming license of the Executive being revoked, (iii) Executive
violates the prohibition against Executive having an interest in an
enterprise that competes with Employer, or violation of Employer's
conflict of interest restrictions, including but not limited to
outside employment and Tribal political activity, (iv) Employer's
business is sold or discontinued or (v) Executive fails to perform to
the best of his abilities to achieve the performance goals directly
within his control as set forth in the approved performance goals
report pursuant to Section 1 of this Agreement. Employer's only
obligation shall be to pay any portion of the salary and bonus earned
by Executive and any benefits that have been vested in Executive
pursuant to this Agreement prior to termination.
(e) BUSINESS CLOSURE OR SALE. Employer may terminate the employment
of Executive in the event Employer sells or closes its facilities
located at SILVER STAR RESORT AND CASINO. Employer's only obligation
shall be to pay any portion of the salary and bonus earned by
Executive and any benefits that have been vested in Executive
pursuant to this Agreement prior to termination.
(f) RESIGNATION. The Executive may terminate this Agreement at any
time effective upon ninety (90) days' prior written notice to
Employer. Employer's only obligation shall be to pay any portion of
the salary and bonus earned by Executive and any benefits that have
been vested in Executive pursuant to this Agreement prior to
termination.
(g) FAILURE TO MAINTAIN LICENSE. Employer may terminate employment of
the Executive immediately in the event Executive fails to maintain at
all times a valid
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license from the Choctaw Gaming Commission, fails to be approved
by the Choctaw Gaming Commission as a result of any background
investigation of Executive conducted at any time during the term
of this Agreement by the Choctaw Gaming Commission or in the event
any gaming license of Executive in any other jurisdiction is
revoked for any reason.
Section 5. REPORTING ADVERSE ACTIONS:
Executive shall notify the Chairman of the Board of Directors of
Employer in writing within one (1) working day of any investigation, proposed
adverse action or other adverse action, whether final or not, taken by any
licensing authority against him in any jurisdiction.
Section 6. EMPLOYER PROPERTY:
Executive agrees that upon termination, expiration or resignation,
he will promptly return to Employer any property owned by Employer.
Section 7. CONFIDENTIALITY:
Employer has developed and compiled, at substantial cost, certain
products, technology, commercial data, financial data and other materials and
information that are confidential and proprietary in nature. Executive agrees
to maintain the confidentiality of any such products, technology, commercial
data, financial data, and other materials and information developed or
produced by Employer, the Mississippi Band of Choctaw Indians, or the
predecessors, successors or affiliated companies of any of them of which
Executive gains knowledge or access by reason of his employment relationship
with Employer. Executive further agrees that he will not use or disclose any
of such information unless (a) it is in the business or for the benefit of
Employer, (b) the information has already been made public without any
participation by Executive, (c) disclosure is required by law or regulation,
or (d) Employer, the Mississippi Band of Choctaw Indians, or Employer's
predecessors, successors or affiliates, consents in writing to the disclosure.
Section 8. SEVERABILITY:
This Agreement shall be governed by and construed in accordance
with the laws of the State of Mississippi. Exclusive venue and jurisdiction
shall be in the Tribal Court of the Mississippi Band of Choctaw Indians. It
is agreed that if any clause or provision of this Agreement is found by the
court to be invalid, illegal or unenforceable, the rest of Agreement shall
not be affected, and the rights and obligations of the parties shall be
enforced as if the Agreement did not contain such illegal, invalid or
unenforceable clause or provision.
Section 9. WAIVER OF PROVISIONS:
Failure of either party to insist, in one or more instances, on
performance by the other in strict accordance with the terms and conditions
of this Agreement shall not be deemed a waiver of relinquishment of any right
granted hereunder or of the future performance of any such
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term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by or on behalf of both parties.
Section 10. NOTICES:
Any notice or other communication required or permitted hereunder
shall be deemed sufficiently given if personally delivered or sent by
registered or certified mail, postage and fees prepaid, addressed to the
party to be notified as follows:
(a) If to Employer: Mississippi Band of Choctaw Indians
d/b/a Choctaw Resort Development Enterprise
Chief Xxxxxxx Xxxxxx
Chairman of the Board
Tribal Office Building
P.O. Box 6010, Choctaw Branch
Xxxxxxxxxxxx, Xxxxxxxxxxx 00000
(b) If to Executive: Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx
Xxxxxxx XX 00000
or in each case to such other address as either party may from time to time
designate in writing to the other. Such notice or communication shall be
deemed to have been given as of the date so mailed or personally delivered as
provided in this Section 10.
Section 11. MODIFICATION AND AMENDMENT:
This Agreement contains the sole and entire Agreement between the
parties hereto and supersedes all prior discussions and agreements between
the parties with respect to the subject matter hereof, and any such prior
agreements, shall, from and after the date hereof, be null and void. Except
as otherwise specifically provided, the terms and conditions of this
Agreement may be amended at any time by mutual agreement of the parties,
provided that before any amendment shall be valid or effective, it shall have
been reduced to writing and signed by the Chairman of the Board and by
Executive.
Section 12. BINDING EFFECT:
This Agreement shall be binding upon and inure to the benefit of
Employer, its successors and assigns, and upon Executive, his administrators,
executors, legatees, heirs and assigns.
Section 13. INDIAN PREFERENCE.
The Executive recognizes the principle of Choctaw
Self-Determination and will employ, train, promote or discharge employees of
Employer in compliance with the policy of Indian preference, including formal
and on the job training at the management level, with an annual report to be
made through the Chief to the Tribal Council. A career tracking system will
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be established by the Tribe and Employer to allow Choctaw college students to
work for Employer with follow-up and support provided.
Section 14. COVENANT NOT TO COMPETE.
(a) RESTRICTIONS. In consideration of the confidential information
disclosed to Executive and as an inducement to Employer to enter into
this Agreement and to pay the compensation referred to herein,
Executive agrees that, unless otherwise agreed in writing by
Employer, during the term of this Agreement and continuing until the
end of eighteen (18) months following termination of his employment
pursuant to Section 4(f), (Resignation) or pursuant to Section 4(g)
(Failure to Maintain License), Executive shall not enter negotiations
for any investment in or employment or services with or on behalf of
any competitor of Employer. For purposes of this Agreement a
competitor of Employer is considered to be any business that provides
resort/casino facilities within the State of Mississippi and/or
resort/casino facilities owned by an Indian Tribe in the State of
Louisiana. For purposes of this Section, prohibited "negotiations" by
Executive shall include the direct or indirect discussions of
investments in a competitor or contractual arrangements for
consulting, employment or other services, either as an individual or
as a partner, employee, member, officer, director, or shareholder of
any legal entity. In the event the employment of the Executive is
terminated by the Employer, with or without cause, the above
restrictions shall be inapplicable. Notwithstanding any other
provision of this Agreement, Executive further agrees that for a
period of twelve (12) months following the termination of this
Agreement for any reason, Executive shall not for himself or on
behalf of any other person, firm, partnership or corporation,
directly or indirectly, solicit any employee of the Mississippi Band
of Choctaw Indians or any of its enterprises or affiliated companies
for the purpose of competing with the Employer, nor shall Executive
directly or indirectly solicit, make known or divulge the name,
identities or addresses of any of the customers of the Employer nor
utilize nor make use of any of said customers for the purpose of
competing with the Employer.
(b) REMEDIES. Executive has carefully read and considered the
provisions of this Section, and having done so, agrees that the
restrictions are fair and reasonable and are reasonably required for
the protection of the investment of Employer and do not prevent
Executive from earning a livelihood in the event of termination of
employment pursuant to this Agreement. In the event of a breach or
threatened breach by Executive of any of the provisions of this
Section, Employer, in addition to and not in limitation of other
rights, remedies or damages available to Employer at law or in
equity, shall be entitled to a permanent injunction in order to
prevent or restrain any such breach by Executive or by Executive's
future partners, employers, or any other third persons acting
directly or indirectly for or with Executive.
(c) REFORMATION. In the event that any of the provisions of this
Section 14 shall be held to be invalid or unenforceable by a court of
law, the remaining provisions shall nevertheless continue to be valid
and enforceable as though the invalid or unenforceable parts had not
been included, and the restrictions on time and locations
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of practice may be reformed by the court so as not to exceed the
maximum time period or location restrictions which the court deems
reasonable and enforceable.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the date first above mentioned.
MISSISSIPPI BAND OF
CHOCTAW INDIANS
D/B/A CHOCTAW RESORT
ATTEST: DEVELOPMENT ENTERPRISE
/s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- -----------------------------------
Xxxxx Xxxxx, Acting Secretary Xxxxxxx Xxxxxx, Tribal Chief and
Chairman of the Board of Directors
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxx
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