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EXHIBIT 10.40
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Employment Agreement")
entered into as of January 6, 2000, by and between Empress Casino Joliet
Corporation ("Employer"), and Xxxxx Xxxxxxxx ("Employee").
RECITALS
WHEREAS, Employer is the owner and operator of a casino and hotel
facility in Joliet, Illinois (the "Joliet Facility") and
WHEREAS, Employee is currently employed by Employer pursuant to a
written contract (the "Original Employment Agreement") which is set to expire on
July 31, 2000 (the "Original Termination Date");
WHEREAS, Employer desires to employ Employee, and Employee desires to
accept such employment, pursuant to the terms of this Employment Agreement and
in furtherance of such desires Employer and Employee wish to amend and restate
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 July 31, 2003, 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 General Manager 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, Chief Executive Officer and President of Employer.
1. Duties and Responsibilities.
A. Duties. In his capacity as General Manager of Employer,
Employee shall
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devote his best efforts and his full business time and attention to the
performance at 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 of the duties
customarily incident to the position of General Manager and to such other duties
of a senior officer as may be reasonably requested by the President of the
Employer in a manner so as to maximize, to the best of his ability, the
profitability of each Facility, for and on behalf of the Employer 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, 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
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.
1. 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 Thousand Dollars ($200,000)
per year, which may be adjusted annually by a merit increase based upon
Employer's existing policy and an annual performance appraisal of Employee and
Employer (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;
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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, at Employer's sole discretion, 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.
1. 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 Employer; 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; and
D. occasional use of a company vehicle as and when needed in
connection with the performance of Employee's duties and responsibilities; and
E. participation in Employer's "Paid Days Off/Vacation"
policy; and **
F. use of an Employer-owned automobile currently provided to
Employee pursuant to the Original Employment Agreement until such time as the
lease of that automobile expires.
7. Gaming License. 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 are conducting gaming operations for persons serving in a similar
capacity as Employee. Accordingly, during the course of his
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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.
8. 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;
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 Chief
Financial Officer, Chief Executive Officer, Chief Operating Officer or Board of
Directors of the Employee (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.
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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 by Section 5
herein and all Fringe Benefits as defined by Section 6 hereof will cease at the
date of termination.
C. Termination Without Cause. Employer in its discretion may
terminate Employee at any time without cause. If Employee is terminated by
Employer without cause, Employee shall continue to receive the Base Compensation
for a period of time equal to six (6) months immediately following the date of
termination (payable as provided in Subsection 5(A)); provided, however, all
Fringe Benefits as described herein, or otherwise provided to Employee shall
terminate immediately and Employee shall not be entitled to a Bonus.
Notwithstanding anything contained herein to the contrary, in the event Employer
terminates Employee without cause prior to July 31, 2000, Employee shall
continue to receive Base Compensation through February 1, 2001, however, all
Fringe Benefits either defined herein or provided by Employer shall terminate
immediately upon termination of employment.
9. Survival of Certain Covenants. The covenants not to 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, 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
other 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, unless
such gaming facility is located in Las Vegas, Reno, Lake Tahoe or Atlantic City.
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
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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, 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 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
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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. 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, 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;
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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 of Employee 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 and agrees to 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 be amended
only pursuant to a written 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.
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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 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 Holding Corp.
0000 Xxxxxxx Xxxxx Xxxxxx,
XX 0000000
Attn: President
If to Employee: Xx. Xxxxx Xxxxxxxx
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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 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.
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),
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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 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" EMPRESS CASINO JOLIET CORPORATION
an Illinois corporation
By:
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Xxxx Xxxxxx, Chief Financial 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.
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