EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.5
This Employment Agreement (“Agreement”), including the attached Exhibit “A,” is entered
into between the Inn of the Mountain Gods Resort and Casino, a Mescalero Apache Tribal enterprise,
having offices at 000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (“Employer”), and Xxxxx X.
Xxxxxxx, an individual currently residing at 125 Mira Monte Road, X.X. Xxx 0000, Xxxx, Xxx Xxxxxx
00000 (“Employee”), to be effective as of September 12, 2005 (the “Effective Date”).
WITNESSETH
WHEREAS, Employer desires to employ Employee in the position set forth on Exhibit “A” and
under the terms and conditions set forth in this Employment Agreement.
WHEREAS, Employee is willing to accept employment with Employer under the terms and conditions
set forth in this Employment Agreement; and
NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and obligations
contained herein, Employer and Employee agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be employed by Employer,
beginning as of the Effective Date and continuing until the date set forth on Exhibit “A” (the
“Term”), subject to the terms and conditions of this Agreement.
1.2 Employee initially shall be employed in the position set forth on Exhibit “A.” Employer
may subsequently assign Employee to a different position or modify Employee’s duties and
responsibilities; provided however, in the event Employer substantially reduces the duties or
responsibilities of Employee, Employee may elect to terminate this Agreement under Section 3.2 (ii)
and said termination shall constitute an Involuntary Termination for purposes of Section 3.5.
Employee agrees to serve in the assigned position and to perform diligently and to the best of
Employee’s abilities the duties and services appertaining to such position as determined by
Employer, as well as such additional or different duties and services appropriate to such position
which Employee from time to time may be reasonably directed to perform by Employer. Employee shall
at all times comply with and be subject to such policies and procedures as Employer may establish
from time to time.
1.3 Employee shall, during the period of Employee’s employment by Employer, devote Employee’s
full business time, energy, and best efforts to the business and affairs of Employer and its
Enterprises or other entities. Employee may not engage, directly or indirectly, in any other
business, investment, or activity that interferes with Employee’s performance of Employee’s duties
hereunder, is contrary to the interests of Employer, or requires any significant portion of
Employee’s business time.
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1.4 In connection with Employee’s employment by Employer, Employer shall endeavor to provide
Employee access to such information pertaining to the business and services of Employer as is
appropriate for Employee’s employment responsibilities. Employer also shall endeavor to provide to
Employee the opportunity to develop business relationships with those of Employer’s clients and
potential clients that are appropriate for Employee’s employment responsibilities.
1.5 Employee acknowledges and agrees that at all times during the employment relationship
Employee owes fiduciary duties to Employer, including but not limited to the fiduciary duties of
the highest loyalty, fidelity and allegiance to act at all times in the best interests of the
Employer, to make full disclosure to Employer of all information that pertains to Employer’s
business and interests, to do no act which would injure Employer’s business, its interests, or its
reputation, and to refrain from using for Employee’s own benefit or for the benefit of others any
information or opportunities pertaining to Employer’s business or interests that are entrusted to
Employee or that Employee learned while employed by Employer. Employee acknowledges and agrees that
upon termination of the employment relationship, Employee shall continue to refrain from using for
Employee’s own benefit or the benefit of others any information or opportunities pertaining to
Employer’s business or interests that were entrusted to Employee during the employment relationship
or that Employee learned while employed by Employer. Employee agrees that while employed by
Employer and thereafter Employee shall not knowingly take any action that interferes with the
internal relationships between Employer and its employees or representatives or interferes with the
external relationships between Employer and third parties.
1.6 It is agreed that any direct or indirect interest in, connection with, or benefit from any
outside activities, particularly commercial activities, which interest might in any way adversely
affect Employer or any of its Enterprises or other entities, involves a possible conflict of
interest. In keeping with Employee’s fiduciary duties to Employer, Employee agrees that during the
employment relationship Employee shall not knowingly become involved in a conflict of interest with
Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue. Moreover,
Employee agrees that Employee shall disclose to Employer’s Chairperson or the Chief Operating
Officer should such duty be so delegated, same herein referred to as “Chairperson” any facts that
might involve such a conflict of interest that has not been approved by Employer’s Chairperson.
Employer and Employee recognize that it is impossible to provide an exhaustive list of actions or
interests that constitute a “conflict of interest.” Moreover, Employer and Employee recognize there
are many borderline situations. In some instances, full disclosure of facts by the Employee to
Employer’s Chairperson or the Chief Operating Officer should such duty be so delegated, may be all
that is necessary to enable Employer or its affiliates to protect its interests. In others, if no
improper motivation appears to exist and the interests of Employer or its affiliates have not
suffered, prompt elimination of the outside interest will suffice. In still others, it may be
necessary for Employer to terminate the employment relationship. Employer and Employee agree that
Employer’s determination as to whether a conflict of interest exists
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shall be conclusive. Employer reserves the right to take such action as, in its judgment, will
end the conflict.
1.7 Employee understands and acknowledges that the terms and conditions of this Agreement
constitute confidential information. Employee shall keep confidential the terms of this Agreement
and shall not disclose this confidential information to anyone other than as required by law.
Employee acknowledges and understands that disclosure of the terms of this Agreement constitutes a
material breach of this Agreement and could subject Employee to disciplinary action, including
without limitation, termination of employment.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee’s monthly base salary during the Term shall be not less than the amount set forth
under the heading “Monthly Base Salary” on Exhibit “A,” subject to increase at the sole discretion
of the Employer, provided however, that Employee shall receive an annual cost of living increase
based on the percentage specified by Employer for all of Employer’s employees or a mutually
agreeable federal governmental index, which shall be paid in accordance with Employer’s standard
payroll practice. Any calculation to be made under this Agreement with respect to Employee’s
Monthly Base Salary shall be made using the then current Monthly Base Salary in effect at the time
of the event for which such calculation is made.
2.2 While employed by Employer, Employee shall be allowed to participate, on the same basis
generally as other employees of Employer, in all general employee benefit plans and programs,
including improvements or modifications of the same, which on the effective date or thereafter are
made available by Employer to all or substantially all of Employer’s employees. Such benefits,
plans, and programs may include, without limitation, paid vacation, paid sick leave, paid holidays,
and medical, health, and dental care, life insurance, disability protection, and pension plans.
Nothing in this Agreement is to be construed or interpreted to provide greater rights,
participation, coverage, or benefits under such benefit plans or programs than provided to
similarly situated employees pursuant to the terms and conditions of such benefit plans and
programs.
2.3 While employed by Employer, Employee shall be entitled to reimbursement for all reasonable
expenses, including travel and entertainment, incurred by Employee in the performance of Employee’s
duties. Where time allows, any such request for expenditure shall be approved in advance by the
Chief Operating Officer. Employee will maintain records and written receipts as required by the
Employer’s policy and reasonably requested by the Employer to substantiate such expenses.
2.4 Employer shall not by reason of this Article 2 be obligated to institute, maintain, or
refrain from changing, amending, or discontinuing, any such incentive compensation or employee
benefit program or plan, so long as such actions are similarly applicable to covered employees
generally. Moreover, unless specifically provided for in a written plan document adopted by the
Management Board of the Inn of the Mountain Gods Resort and Casino, none of the benefits or
arrangements described in this Article 2
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shall be secured or funded in any way, and each shall instead constitute an unfunded and
unsecured promise to pay money in the future exclusively from the general assets of Employer.
2.5 Employer may withhold from any compensation, benefits, or amounts payable under this
Agreement all federal, state, or other taxes as may be required pursuant to any law or governmental
regulation or ruling.
ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH TERMINATION:
3.1 Notwithstanding any other provisions of this Agreement, Employer shall have the right to
terminate Employee’s employment under this Agreement at any time prior to the expiration of the
Term for any of the following reasons:
(i) For “cause” upon the determination by the Employer’s Chairperson that “cause”
exists for the termination of the employment relationship. As used in this Section 3.1
(i), the term “cause” shall mean [a] Employee’s gross negligence or willful misconduct
in the performance of the duties and services required of Employee pursuant to this
Agreement; [b] Employee has been convicted of a felony; [c] Employee has willfully
refused without proper legal reason to perform the duties and responsibilities required
of Employee under this Agreement which remains uncorrected for thirty (30) days
following written notice to Employee by Employer of such breach; [d] Employee’s
involvement in a conflict of interest as referenced in Section 1.6 for which Employer
makes a determination to terminate the employment of Employee which remains uncorrected
for thirty (30) days following written notice to Employee by Employer of such breach;
[e] Employee has willfully engaged in conduct that Employee knows or should know is
materially injurious to Employer or any of its respective Enterprises or other
entities; [f] Employee’s material breach of any material provision of this Agreement or
Tribal policy which remains uncorrected for thirty (30) days following written notice
to Employee by Employer of such breach; [g] Employee violates the Indian Gaming
Regulatory Act or other applicable United States law as proscribed by Section 5.1; or
[h] Employee no longer has a valid Mescalero Apache Tribal Gaming Commission Gaming
License. It is expressly acknowledged and agreed that the decision as to whether
“cause” exists for termination of the employment relationship by Employer is delegated
to the Employer’s Chairperson for determination. If Employee disagrees with the
decision reached by Employer’s Chairperson, the dispute will be limited to whether
Employer’s Chairperson reached the decision in good faith;
(ii) for any other reason whatsoever, with or without cause, in the sole
discretion of the Chairperson of Employer;
(iii) upon Employee’s death; or
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(iv) upon Employee’s becoming disabled so as the Employee is permanently and
totally unable to perform Employee’s duties for Employer as a result of any medically
determinable physical or mental impairment as supported by a written medical opinion to
the foregoing effect by a physician selected by Employer.
The termination of Employee’s employment by Employer prior to the expiration of the Term shall
constitute a “Termination for Cause” if made pursuant to Section 3.1 (i); the effect of such
termination is specified in Section 3.4. The termination of Employee’s employment by Employer prior
to the expiration of the Term shall constitute an “Involuntary Termination” if made pursuant to
Section 3.1 (ii); the effect of such termination is specified in Section 3.5. The effect of the
employment relationship being terminated pursuant to Section 3.1 (iii) as a result of Employee’s
death is specified in Section 3.6. The effect of the employment relationship being terminated
pursuant to Section 3.1 (iv) as a result of the Employee becoming incapacitated is specified in
Section 3.7.
3.2 Notwithstanding any other provisions of this Agreement except Section 8.6, Employee shall
have the right to terminate the employment relationship under this Agreement at any time prior to
the expiration of the Term of employment for any of the following reasons:
(i) a material breach by Employer of any material provision of this Agreement
which remains uncorrected for thirty (30) days following written notice of such breach
by Employee to Employer; or
(ii) for any other reason whatsoever, in the sole discretion of Employee.
The termination of Employee’s employment by Employee prior to the expiration of the Term shall
constitute an “Involuntary Termination” if made pursuant to Section 3.2 (i); the effect of such
termination is specified in Section 3.5. The termination of Employee’s employment by Employee prior
to the expiration of the Term shall constitute a “Voluntary Termination” if made pursuant to
Section 3.2 (ii); the effect of such termination is specified in Section 3.3.
3.3 Upon a “Voluntary Termination” of the employment relationship by Employee prior to
expiration of the Term, all future compensation to which Employee is entitled and all future
benefits for which Employee is eligible shall cease and terminate as of the date of termination.
Employee shall be entitled to pro rata salary through the date of such termination, but Employee
shall not be entitled to any individual bonuses or individual incentive compensation not yet paid
at the date of such termination.
3.4 If Employee’s employment hereunder shall be terminated by Employer for Cause as defined in
paragraph 3.1 prior to expiration of the Term, all future compensation to which Employee is
entitled and all future benefits for which Employee is eligible shall cease and terminate as of the
date of termination. Employee shall be entitled to pro rata salary through the date of such
termination, but Employee shall not be entitled to any
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individual bonuses or individual incentive compensation not yet paid at the date of such
termination.
3.5 Upon an Involuntary Termination of the employment relationship by either Employer or
Employee prior to the expiration of the Term, Employee shall be entitled, in consideration of
Employee’s continuing obligations hereunder after such termination (including, without limitation,
Employee’s non-competition obligations), to receive the then current Monthly Base Salary, benefits
and allowance continuation as set forth in Exhibit “A” for a period of six months or until employee
has secured employment with another employer. Employee shall not be under any duty or obligation to
seek or accept other employment following Involuntary Termination and the amounts due Employee
hereunder shall not be reduced or suspended if Employee accepts subsequent employment. Employee’s
rights under this Section 3.5 are Employee’s sole and exclusive rights against Employer, its
Enterprises or their entities of the Employer, and Employer’s sole and exclusive liability to
Employee under this Agreement, in contract, tort, or otherwise, for any Involuntary Termination of
the employment relationship. Employee covenants not to xxx or lodge any claim, demand or cause of
action against Employer for any sums for Involuntary Termination other than those sums specified in
this Section 3.5. If Employee breaches this covenant, Employer shall be entitled to recover from
Employee all sums expended by Employer (including costs and attorneys fees) in connection with such
suit, claim, demand or cause of action.
3.6 Upon termination of the employment relationship as a result of Employee’s death,
Employee’s heirs, administrators, or legatees shall be entitled to Employee’s pro rata salary
through the date of such termination, but Employee’s heirs, administrators, or legatees shall not
be entitled to any individual bonuses or individual incentive compensation not yet paid to Employee
at the date of such termination.
3.7 Upon termination of the employment relationship as a result of Employee’s incapacity,
Employee shall be entitled to his or her pro rata salary through the date of such termination, but
Employee shall not be entitled to any individual bonuses or individual incentive compensation not
yet paid to Employee at the date of such termination.
3.8 Notwithstanding any provision herein to the contrary, upon a termination of Employee’s
employment under any of the circumstances described in Sections 3.5, 3.6 or 3.7 above, Employee
shall be entitled to receive a pro-rata annual bonus payment through the date of such termination
of employment.
3.9 In all cases, the compensation and benefits payable to Employee under this Agreement upon
termination of the employment relationship shall be offset against any amounts to which Employee
may otherwise be entitled under any and all severance plans, and policies of Employer.
3.10 Termination of the employment relationship does not terminate those obligations imposed
by this Agreement that are continuing obligations, including, without limitation, Employee’s
obligations under Articles 6 and 7.
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3.11 This Agreement governs the rights and obligations of Employer and Employee with respect
to Employee’s salary, bonuses, and other perquisites of employment.
ARTICLE 4: CONTINUATION OF EMPLOYMENT BEYOND TERM; TERMINATION AND EFFECTS OF TERMINATION:
4.1 Should Employee remain employed by Employer beyond the expiration of the Term specified on
Exhibit “A,” such employment shall convert to an at will employment for a month to month period
with same terminable at anytime by either Employee or Employer for any reason whatsoever, with or
without cause. Upon such termination of the employment relationship by either Employer or Employee
for any reason whatsoever, all future compensation to which Employee is entitled and all future
benefits for which Employee is eligible shall cease and terminate. Employee shall be entitled to
pro rata salary through the date of such termination, but Employee shall not be entitled to any
individual bonuses or individual incentive compensation not yet paid at the date of such
termination.
ARTICLE 5: MESCALERO APACHE TRIBE LAWS, MESCALERO APACHE TRIBAL GAMING COMMISSION REGULATIONS AND UNITED STATES INDIAN GAMING REGULATORY ACT AND OTHER LAWS:
5.1. Employee shall at all times comply with applicable Mescalero Apache Tribal laws,
Mescalero Apache Tribal Gaming Commission regulations and United States laws applicable to
Employee’s actions on behalf of Employer, including specifically, without limitation, the Tribal
Gaming Ordinance and the United States Indian Gaming Regulatory Act, generally codified in 25 USC
2701 (“IGRA”), as the IGRA may hereafter be amended, and/or its successor statutes. If Employee
pleads guilty to or nolo contendere or admits civil or criminal liability under the IGRA or other
applicable United States law, or if a court finds that Employee has personal civil or criminal
liability under the IGRA or other applicable United States law, or if a court finds that Employee
committed an action resulting in any Mescalero Apache Tribal Resort Enterprise or other Tribal
Enterprise or entity having civil or criminal liability or responsibility under the IGRA or other
applicable United States law with knowledge of the activities giving rise to such liability or
knowledge of facts from which Employee should have reasonably inferred the activities giving rise
to liability had occurred or were likely to occur, such action or finding shall constitute “cause”
for termination under this Agreement unless Employer’s highest applicable level of Employer’s
management determines that the actions found to be in violation of the IGRA or other applicable
United States law were taken in good faith and in compliance with all applicable policies of
Employer.
ARTICLE 6: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
6.1 All information, ideas, concepts, improvements, discoveries, and inventions, whether
patentable or not, which are conceived, made, developed or acquired by
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Employee, individually or in conjunction with others, during Employee’s employment by Employer
(whether during business hours or otherwise and whether on Employer’s premises or otherwise) which
relate to Employer’s business, products or services (including, without limitation, all such
information relating to corporate opportunities, research, financial and sales data, pricing and
trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of
customers or their requirements, the identity of key contacts within the customer’s organizations
or within the organization of acquisition prospects, or marketing and merchandising techniques,
prospective names, and marks) shall be disclosed to Employer and are and shall be the sole and
exclusive property of Employer. Moreover, all drawings, memoranda, notes, records, files,
correspondence, drawings, manuals, models, specifications, computer programs, maps and all other
writings or materials of any type embodying any of such information, ideas, concepts, improvements,
discoveries, and inventions are and shall be the sole and exclusive property of Employer.
6.2 Employee acknowledges that the business of Employer, its Enterprises and other entities is
highly competitive and that their strategies, methods, books, records, and documents, their
technical information concerning their products, equipment, services, and processes, procurement
procedures and pricing techniques, the names of and other information (such as credit and financial
data) concerning their customers and business affiliates, all comprise confidential business
information and trade secrets which are valuable, special, and unique assets which Employer, its
Enterprises and other entities use in their business to obtain a competitive advantage over their
competitors. Employee further acknowledges that protection of such confidential business
information and trade secrets against unauthorized disclosure and use is of critical importance to
Employer, its Enterprises and other entities in maintaining their competitive position. Employee
hereby agrees that Employee will not, at any time during or after his employment by Employer, make
any unauthorized disclosure of any confidential business information or trade secrets of Employer,
its subsidiaries and other entities, or make any use thereof, except in the carrying out of his or
her employment responsibilities hereunder. Employer its Enterprises and other entities shall be
third party beneficiaries of Employee’s obligations under this Section. As a result of Employee’s
employment by Employer, Employee may also from time to time have access to, or knowledge of,
confidential business information or trade secrets of third parties, such as customers, suppliers,
partners, joint ventures, and the like, of Employer, its subsidiaries and other entities. Employee
also agrees to preserve and protect the confidentiality of such third party confidential
information and trade secrets to the same extent, and on the same basis, as Employer’s confidential
business information and trade secrets. Employee acknowledges that money damages would not be
sufficient remedy for any breach of this Article 6 by Employee, and Employer shall be entitled to
enforce the provisions of this Article 6 by terminating any payments then owing to Employee under
this Agreement and/or to specific performance and injunctive relief as remedies for such breach or
any threatened breach. Such remedies shall not be deemed the exclusive remedies for a breach of
this Article 6, but shall be in addition to all remedies available at law or in equity to Employer,
including the recovery of damages from Employee and his or her agents involved in such breach.
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6.3 All written materials, records, and other documents made by, or coming into the possession
of, Employee during the period of Employee’s employment by Employer which contain or disclose
confidential business information or trade secrets of Employer, its Enterprises and other entities
shall be and remain the property of Employer, its Enterprises and other entities, as the case may
be. Upon termination of Employee’s employment by Employer, for any reason, Employee promptly shall
deliver the same, and all copies thereof, to Employer.
6.4 If, during Employee’s employment by Employer, Employee creates any original work of
authorship fixed in any tangible medium of expression which is the subject matter of copyright
(such as videotapes, written presentations on acquisitions, computer programs, drawings, maps,
architectural renditions, models, manuals, brochures, or the like) relating to Employer’s business,
products, or services, whether such work is created solely by Employee or jointly with others
(whether during business hours or otherwise and whether on Employer’s premises or otherwise),
Employee shall disclose such work to Employer. Employer shall be deemed the author of such work if
the work is prepared by Employee in the scope of his employment; or, if the work is not prepared by
Employee within the scope of his employment but is specially ordered by Employer as a contribution
to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as
a supplementary work, as a compilation, or as an instructional text, then the work shall be
considered to be work made for hire and Employer shall be the author of the work. If such work is
neither prepared by the Employee within the scope of his employment nor a work specially ordered
and is deemed to be a work made for hire, then Employee hereby agrees to assign, and by these
presents does assign, to Employer all of Employee’s worldwide right, title, and interest in and to
such work and all rights of copyright therein.
6.5 During the period of Employee’s employment by Employer and thereafter, Employee shall
assist Employer and its nominee, at any time, in the protection of Employer’s worldwide right,
title, and interest in and to information, ideas, concepts, improvements, discoveries, and
inventions, and its copyrighted works, including without limitation, the execution of all formal
assignment documents requested by Employer or its nominee and the execution of all lawful oaths and
applications for applications for patents and registration of copyright in the United States and
foreign countries.
ARTICLE 7: POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
7.1 As part of the consideration for the compensation and benefits to be paid to Employee
hereunder, in keeping with Employee’s duties as a fiduciary and in order to protect Employer’s
interests in the confidential information of Employer and the business relationships developed by
Employee with the clients and potential clients of Employer, and as an additional incentive for
Employer to enter into this Agreement, Employer and Employee agree to the non-competition
provisions of this Article 7. Employee agrees that during the period of Employee’s non-competition
obligations hereunder, Employee will
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not, directly or indirectly work for Employee or for others, in Xxxxx County, Lincoln County,
Xxxxxx County and Xxxx Xxx County, New Mexico:
(i) engage in any business competitive with the business conducted by Employer;
(ii) render advice or services to, or otherwise assist, any other person,
association, or entity who is engaged, directly or indirectly, in any business
competitive with the business conducted by Employer;
(iii) induce any employee of Employer, its Enterprises and other entities to
terminate his or her employment with Employer, its Enterprises and other entities, or
hire or assist in the hiring of any such employee by person, association, or entity not
affiliated with Employer.
These non-competition obligations shall extend during the term of this agreement and for twelve
(12) months after termination or expiration whichever should occur last.
7.2 Employee understands that the foregoing restrictions may limit his ability to engage in
certain businesses during the period provided for above, but acknowledges that Employee will
receive sufficiently high remuneration and other benefits (e.g., the right to receive compensation
under Section 3.5 upon Involuntary Termination) under this Agreement to justify such restriction.
Employee acknowledges that money damages would not be sufficient remedy for any breach of this
Article 7 by Employee, and Employer shall be entitled to enforce the provisions of this Article 7
by terminating any payments then owing to Employee under this Agreement and/or to specific
performance and injunctive relief as remedies for such breach or any threatened breach. Such
remedies shall not be deemed the exclusive remedies for a breach of this Article 7, but shall be in
addition to all remedies available at law or in equity to Employer, including, without limitation,
the recovery of damages from Employee and his or her agents involved in such breach.
7.3 It is expressly understood and agreed that Employer and Employee consider the restrictions
contained in this Article 7 to be reasonable and necessary to protect the proprietary information
of Employer. Nevertheless, if any of the aforesaid restrictions are found by a court having
jurisdiction to be unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be modified by such
courts so as to be reasonable and enforceable and, as so modified by the court, to be fully
enforced.
ARTICLE 8: MISCELLANEOUS:
8.1 For purposes of this Agreement the term “Employer” shall include the Inn of the Mountain
Gods Resort and Casino, Ski Apache, Casino Apache Travel Center and any other Enterprise or entity
of the Inn of the Mountain Gods Resort and Casino.
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8.2 Employee shall refrain, both during the employment relationship and after the employment
relationship terminates, from publishing any oral or written statements about Employer, its
Enterprises and other entities, or any of such entities’ officers, employees, agents or
representatives that are slanderous, libelous, or defamatory; or that disclose private or
confidential information about Employer, its Enterprises and other entities, or any of such
entities’ business affairs, officers, employees, agents, or representatives; or that constitute an
intrusion into the seclusion or private lives of Employer, its Enterprises and other entities, or
such entities’ officers, employees, agents, or representatives; or that give rise to unreasonable
publicity about the private lives of Employer, its Enterprises and other entities, or any of such
entities’ officers, employees, agents, or representatives; or that place Employer, its Enterprises
and other entities, or any of such entities’ or its officers, employees, agents, or representatives
in a false light before the public; or that constitute a misappropriation of the name or likeness
of Employer, its Enterprises and other entities, or any of such entities’ or its officers,
employees, agents, or representatives. A violation or threatened violation of this prohibition may
be enjoined by the courts. The rights afforded the Employer under this provision are in addition to
any and all rights and remedies otherwise afforded by law.
8.3 For purposes of this Agreement, notices and all other communications provided for herein
shall be in writing and shall be deemed to have been duly given when personally delivered or when
mailed by United States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Employer:
Chairperson
|
F. Xxxxxxxx Xxxxxxxxx, Esq. | |||
Inn of the Mountain Gods Resort and Casino
|
and | Xxxxxxxxx and Xxxxxx | ||
000 Xxxxxxx Xxxxxx Xxxx
|
000 Xxxxxxxx Xxx. | |||
Xxxxxxxxx, Xxx Xxxxxx 00000
|
Xxxxxxxxxx, Xxx Xxxxxx 00000 |
If to Employee, to the address shown on the first page hereof.
Either Employer or Employee may furnish a change of address to the other in writing in accordance
herewith, except that notices of changes of address shall be effective only upon receipt.
8.4 This Agreement shall be governed in all respects by the laws of the Mescalero Apache
Tribe, excluding any conflict-of-law rule or principle that might refer the construction of the
Agreement to the federal courts of the United States.
8.5 No failure by either party hereto at any time to give notice of any breach by the other
party of, or to require compliance with, any condition or provision of this Agreement shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
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8.6 If a dispute arises out of or related to this Agreement, other than a dispute regarding
Employee’s obligations under Article 6, or Article 7, and if the dispute cannot be settled through
direct discussions, then Employer and Employee agree to first endeavor to settle the dispute in an
amicable manner by mediation, before having recourse to any other proceeding or forum.
8.7 Each of Employer and Employee is a citizen of the United States of America. Employer’s
principal place of business is in Mescalero, Xxxxx County, New Mexico. This Agreement was
negotiated and signed in Mescalero, New Mexico. This Agreement shall be performed in Mescalero, New
Mexico. Any litigation that may be brought by either Employer or Employee involving the enforcement
of this Agreement or the rights, duties, or obligations of this Agreement, shall be brought
exclusively in the Tribal court sitting in Mescalero, Xxxxx County, New Mexico, or federal courts
having jurisdiction over the Mescalero Apache Tribe.
8.8 It is a desire and intent of the parties that the terms, provisions, covenants, and
remedies contained in this Agreement shall be enforceable to the fullest extent permitted by law.
If any such term, provision, covenant, or remedy of this Agreement or the application thereof to
any person, association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision, covenant, or remedy shall
be construed in a manner so as to permit its enforceability under the applicable law to the fullest
extent permitted by law. In any case, the remaining provisions of this Agreement or the application
thereof to any person, association, or entity or circumstances other than those to which they have
been held invalid or unenforceable, shall remain in full force and effect.
8.9 This Agreement shall be binding upon and inure to the benefit of Employer and any other
person, association, or entity which may hereafter acquire or succeed to all or substantially all
of the business or assets of Employer by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee’s rights and obligations under Agreement hereof are personal
and such rights, benefits, and obligations of Employee shall not be voluntarily or involuntarily
assigned, alienated, or transferred, whether by operation of law or otherwise, without the prior
written consent of Employer.
8.10 There may exist other agreements between Employer and Employee relating to the employment
relationship between them, e.g., the agreement with respect to company policies contained in
Employer’s Policy booklet and agreements with respect to benefit plans and health insurance. This
Agreement replaces and merges previous agreements and discussions pertaining to the following
subject matters covered herein: the nature of Employee’s employment relationship with Employer and
the term and termination of such relationship. This Agreement constitutes the entire agreement of
the parties with regard to such subject matters, and contains all of the covenants, promises,
representations, warranties, and agreements between the parties with respect such subject matters.
Each party to this Agreement acknowledges that no representation, inducement, promise, or
agreement, oral or written, has been made by either party with respect to such subject matters,
which is not embodied herein, and that no agreement, statement, or
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promise relating to the employment of Employee by Employer that is not contained in this
Agreement shall be valid or binding. Any modification of this Agreement will be effective only if
it is in writing and signed by each party whose rights hereunder are affected thereby, provided
that any such modification must be authorized or approved by Employer’s Chairperson.
8.11 The parties acknowledge that Employee was previously employed as the marketing director
for Employer. Such contract is specifically terminated. Any bonus rights accrued under the prior
contract shall be paid through the effective date of this Agreement.
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement in multiple
originals to be effective on the date first stated above.
INN OF THE MOUNTAIN GODS RESORT AND CASINO |
XXXXX X. XXXXXXX |
|
By: Xxxx X. Chino, Chairperson
|
By: Xxxxx X. Xxxxxxx |
This day of October, 2005.
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AMENDED EXHIBIT “A” TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN THE
INN OF THE MOUNTAIN GODS RESORT AND CASINO
AND XXXXX X. XXXXXXX
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN THE
INN OF THE MOUNTAIN GODS RESORT AND CASINO
AND XXXXX X. XXXXXXX
Employee Name:
|
Xxxxx X. Xxxxxxx | |
Term:
|
Effective September 12, 2005 through September 11, 2008. | |
Position:
|
Chief Operating Officer | |
Location:
|
Mescalero, New Mexico | |
Reporting Relationship:
|
To Chairperson of the Inn of the Mountain Gods Resort and Casino Management Board, or any party so designated by the Chairperson. | |
Monthly Base Salary:
|
Twenty Nine Thousand One Hundred and Sixty-Six Dollars and 67 /100 Dollars ($29,166.67) | |
Employee Benefits:
|
Employee, spouse and eligible dependents will be eligible for immediate coverage for medical, dental and vision benefits to the extent permitted by the Plan Document. | |
Effective date of this Amendment:
|
This amendment is effective as of the Management Board meeting held on November 10, 2006. The employee base salary as adjusted above shall be applicable, for the next pay period following November 10, 2006. |
Xxxx X. Chino, Chairman |
Xxxxx X. Xxxxxxx |
This day of November, 2006.
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