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EXHIBIT 10.49
AGREEMENT
This agreement ("Agreement") is made by and between Jazz Casino
Company, L.L.C., a limited liability company organized and existing under the
laws of the State of Louisiana ("JCC") and Xxxxxx X. Xxxxxx (the "Leased
Executive"), to be effective as of January 1, 1999 (the "Effective Date").
Section 1. Performance Standard. During the term of this Agreement,
including any extension thereof, the Leased Executive agrees that he shall
devote his full time and attention to the execution of those duties and
responsibilities as may be agreed upon by the Leased Executive, JCC and/or
Xxxxxx'x Operating Company, Inc. ("HOC") from time to time (referred to herein
as the "Performance Standards").
Section 2. Reimbursement of Expenses. The Leased Executive will not be
relocating his principal residence to New Orleans; accordingly, JCC shall pay
and/or reimburse to or for the benefit of the Leased Executive the following
expenses: (i) reasonable expenses associated with his work in New Orleans
including, but not limited to, meals and travel expenses between his Memphis
home and New Orleans and reasonable local transportation in New Orleans (it is
understood that the reimbursement for travel expense includes commuting by the
Leased Executive between Memphis and New Orleans each weekend, during Holidays
and for other reasonable needs); (ii) the Leased Executive will lease an
apartment in New Orleans and JCC, subject to review and approval of the terms of
the lease, will reimburse the Leased Executive for his expenses pursuant to the
lease and certain additional related expenses such as utilities, cable charges
and telephone charges (and any rent or other payments required by any unexpired
term of the lease if this Agreement is terminated and the Leased Executive does
not continue to work or live in the New Orleans area) or JCC will pay such
expenses directly to the lessor; and (iii) if the Leased Executive incurs any
tax liabilities as a consequence of the amounts paid or reimbursed in accordance
with this Section 2, JCC shall reimburse the Leased Executive for the amount of
such additional tax.
Section 3. Remuneration. The parties acknowledge that HOC is and shall
remain the direct employer of the Leased Executive during the term of that
certain Executive Leasing Agreement between JCC and HOC, a copy of which is
attached hereto as Exhibit 1. During such term, the Leased Executive shall
receive his salary and benefits from HOC.
In addition, JCC shall make the following payments directly to the
Leased Executive on the dates, in the amounts, and subject to the terms and
conditions specified below.
i. As of January 3, 2000, a bonus equal to 45% of the
annualized base salary paid to the Leased Executive
by HOC, determined as of the date hereof. Any amount
payable hereunder shall be conditioned upon the
material and substantial performance by the Leased
Executive of the Performance Standards, such
performance to be determined in the sole discretion
of the President of JCC. The Leased Executive
acknowledges that upon execution of this Agreement,
HOC shall have no obligation to provide to the Leased
Executive any bonus with respect to service performed
for the benefit of HOC in 1999.
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ii. As of January 3, 2000, a single-sum payment in the
amount of $50,000, constituting payment for the
Leased Executive's hardship, dislocation and loss of
long-term compensation opportunities; provided,
however, that the payment of such amount shall be
conditioned upon the material and substantial
performance by the Leased Executive of the
Performance Standards, such performance to be
determined in the sole discretion of the President of
JCC.
iii. On or before January 3, 2000, in the form of a
single-sum payment, the value of the Leased
Executive's outstanding options and restricted stock
scheduled to vest and become exercisable and/or
transferrable as of January 1, 2001, such options and
restricted stock granted to such executive under the
Xxxxxx'x Entertainment, Inc. 1990 Stock Option Plan,
as amended, and the Xxxxxx'x Entertainment 1990
Restricted Stock Plan, as amended; provided that no
amount shall be paid to the Leased Executive
hereunder if and to the extent (a) the vesting of
such options and restricted stock is otherwise
accelerated by HOC or, the President of JCC, in his
sole discretion, determines that the vesting of such
options and restricted stock should have been
accelerated by HOC in accordance with the provisions
of that certain Work Assignment Agreement between the
Leased Executive and HOC dated as of November 15,
1999, or (b) the President of JCC determines, in his
sole discretion, that the Leased Executive has failed
to satisfy the Performance Standards described in
Section 1 hereof. For purposes of this Section 3iii,
the value of any option shall be the excess of the
closing share price of Xxxxxx'x Entertainment, Inc.
common stock on December 31, 1999, over the option
price of such stock. The value of restricted stock
shall be the closing share price of Xxxxxx'x
Entertainment, Inc. common stock as of December 31,
1999. The Leased Executive acknowledges that upon
receipt of the payment described herein, such options
and restricted stock shall be canceled and be deemed
forfeited, without necessity of further action.
Section 4. Indemnification. The parties acknowledge that during the
term of this Agreement and any period that Xxxxxx X. Xxxxxx serves as an officer
of JCC pursuant to the provisions of Section 6 hereof said Xxxxxx X. Xxxxxx has
been, is and for such period will be serving as an officer of JCC at the
specific request of JCC Holding Company and is entitled to the benefit of the
indemnification provided by Article VI of the Restated Certificate of
Incorporation of JCC Holding Company, a copy of which is attached hereto as
Attachment "A" and incorporated herein by reference.
Section 5. Termination; Amendment. This Agreement shall terminate as of
the termination of the Executive Leasing Agreement by and between HOC and JCC,
except that the obligations described in Sections 3 and 6 hereof shall survive
such termination. This Agreement may be amended by written act executed by the
parties hereto.
Section 6. Employment By JCC.
6.1 Effective as of January 3, 2000, JCC shall employ the Leased
Executive, on the terms and conditions stated in this Section 6, as a common law
employee of JCC, (i) for the three-month period ending March 31, 2000, or (ii)
for such longer period as the parties might agree to in writing as an amendment
to this Agreement pursuant to Section 5 hereof; provided, however, that JCC may
terminate the employment of the Leased Executive during such three month term,
or any extension so agreed to by amendment, if JCC determines in good faith that
the Leased Executive has materially and substantially failed to comply with any
Performance Standards established in accordance with Section 1 hereof.
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6.2 Subject to approval of this Section 6.2 by the JCC Compensation
Committee, during the period of employment specified in Section 6.1 hereof, or
such shorter period as will result if the Leased Executive terminates this
Agreement sooner, JCC shall pay to the Leased Executive, in accordance with
JCC's standard payroll practices and policies, a prorated base salary calculated
on the basis of the annualized base salary, exclusive of any bonus or benefits,
being paid to the Leased Executive by his current employer, HOC, as of the date
hereof.
6.3 Subject to approval of this Section 6.3 by the JCC Compensation
Committee, and in addition to any other payments required by this Agreement,
including any payments required under Sections 6.2 or 6.4, at the termination of
the period of employment specified in Section 6.1, or such shorter period as
will result if the Leased Executive terminates this Agreement sooner, JCC shall
pay to the Leased Executive a hardship payment calculated on the basis of an
annualize amount of $50,000, prorated for the actual number of days of his
employment pursuant to the provisions of Section 6.1 hereof; provided that such
payment shall be conditioned upon material and substantial compliance by the
Leased Executive with any Performance Standards established in accordance with
Section 1 hereof during the entire term of his employment as specified in
Section 6.1, including extensions, such performance to be determined in the sole
discretion of JCC; and
6.4 Subject to approval of this Section 6.4 by the JCC Compensation
Committee, and in addition to any other payments required by this Agreement,
including any payments required under Sections 6.2 or 6.3, at the termination of
the period of employment specified in Section 6.1 hereof, or such shorter period
as will result if the Leased Executive terminates this Agreement sooner, JCC
shall pay to the Leased Executive a bonus calculated on the basis of 45% of his
annualized base salary as provided for in Section 6.2 hereof, prorated for the
actual number of days of his employment pursuant to the provisions of Section
6.1 hereof; provided that such payment shall be conditioned upon material and
substantial compliance by the Leased Executive with any Performance Standards
established in accordance with Section 1 hereof during the entire term of his
employment as specified in Section 6.1, including extensions, such performance
to be determined in the sole discretion of JCC; and
6.5 Subject to approval of this Section 6.5 by the JCC Compensation
Committee, and in addition to the foregoing, JCC shall provide, effective as of
January 3, 2000 and until his employment terminates pursuant to Section 6.1
hereof or otherwise, coverage under the group medical plan maintained by JCC for
the benefit of its similarly situated executives or, if such coverage is not
feasible or available, JCC shall pay to or for the benefit of the Leased
Executive the amount of any premium necessary to maintain the Leased Executive's
coverage under the group medical plan maintained by HOC, whether pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") or otherwise.
JCC shall provide such additional benefits as are customarily provided by JCC to
its employees at grade level 29; provided however, that the Leased Executive
acknowledges that the amounts paid under Sections 6.3 and 6.4 of this Agreement
shall be in lieu of, and not in addition to, any severance pay and annual bonus
payable by JCC to such employees.
6.6 In the event that the JCC Compensation Committee does not approve
the compensation package described in Sections 6.2 through 6.5 hereof, Leased
Executive shall have the option to negotiate a new compensation package or to
terminate his services. If such negotiations become necessary, Leased Executive
and JCC shall negotiate in good faith to agree upon a compensation package which
is (i) as close as possible to that described in Sections 6.2 through 6.5 above
and (ii) acceptable to the JCC Compensation Committee.
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Section 7. Further Employment.
Any employment of Leased Executive by JCC beyond the term specified in
Sections 6.1(i) or 6.1(ii) shall be for such term and on such terms and
conditions as may be agreed to by the parties as a written amendment to this
Agreement, in accordance with Section 5 hereof.
THIS AGREEMENT was executed in multiple counterparts, each of which
shall be deemed an original as of the dates set forth below.
XXXXXX X. XXXXXX JAZZ CASINO COMPANY, L.L.C.
/s/ Xxxxxx X. Xxxxxx
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By: /s/ Xxxxxxxx X. Xxxxxxx
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XXXXXXXXX X. XXXXXXX
President
Date: 12/15/99 Date:
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JCC Holding Company executes this document solely for the purpose of
acknowledging that Xxxxxx X. Xxxxxx, during the term of this Agreement and any
period that he serves as an officer of JCC pursuant to the provisions of Section
6 hereof, has served, is serving and will serve as an offer of JCC at the
specific request of JCC Holding Company and is entitled to the benefit of the
indemnification provided by Article VI of the Restated Certificate of
Incorporation of JCC Holding Company, a copy of which is attached hereto as
Attachment "A" and incorporated herein by reference.
JCC HOLDING COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------------------
XXXXXXXXX X. XXXXXXX
President
Date:
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ATTACHMENT "A"
RESTATED CERTIFICATE OF INCORPORATION
OF JCC HOLDING COMPANY
ARTICLE VI.
Section 6.1 Subject to Section 6.3, the Corporation (i) shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he (a) is or was a director
or officer of the Corporation, or (b) is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, and (ii) may, in the discretion of the Board
of Directors (but subject to the determinations required by Section 6.3),
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he (a) is or was an
employee or agent of the Corporation, or (b) is or was serving at the request of
the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, however, that the Corporation shall not be obligated to indemnify any
such person who is a party to an action, suit or proceeding by reason of the
fact that such person is a plaintiff with respect to such action, suit or
proceeding. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interest of the Corporation, or, with respect to any
criminal action or proceeding, had reasonable cause to believe his conduct was
unlawful.
Section 6.2 Subject to Section 6.3, the Corporation (i) shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he (a)
is or was a director or officer of the Corporation, or (b) is or was serving at
the request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, and (ii) may, in the
discretion of the Board of Directors (but subject to the determinations required
by Section 6.3), indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he (a) is or was an employee or agent of the Corporation, or (b) is or
was serving at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interest of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
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Section 6.3 Any indemnification under this Article VI (unless ordered
by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 6.1 or Section 6.2, as the
case may be. Such determination shall be made (i) by the majority vote of the
directors who were not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by outside legal
counsel in a written opinion, or (iv) by the stockholders. To the extent,
however, that a present or former director or officer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding described in Section 6.1 or Section 6.2, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
Section 6.4 For purposes of any determination under Section 6.3, a
person shall be deemed to have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the Corporation, and,
with respect to any criminal action or proceeding, to have had no reasonable
cause to believe his conduct was unlawful, if his action is based on the records
or books of account of the Corporation or another enterprise, or on information
supplied to him by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the Corporation or
another enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by the
Corporation or another enterprise. The term "another enterprise" as used in this
Section 6.4 shall mean any other corporation or any partnership, joint venture,
limited liability company, trust or other enterprise of which such person is or
was serving at the request of the Corporation as a director, officer, employee
or agent. The provisions of this Section 6.4 shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 6.1 or 6.2, as the
case may be.
Section 6.5 Notwithstanding any contrary determination in the specific
case under Section 6.3, and notwithstanding the absence of any determination
thereunder, any director or officer may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 6.1 and 6.2. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standards of conduct set forth in Sections 6.1
or 6.2, as the case may be. Notice of any application for indemnification
pursuant to this Section 6.5 shall be given to the Corporation promptly upon the
filing of such application.
Section 6.6 (a) The right to indemnification under this Article VI
shall be a contract right and shall include the right to have the Corporation
pay the expenses incurred in defending or investigating a threatened or pending
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding within 20 calendar days after receipt by the Corporation of a
statement or statements from the claimant requesting such advances from time to
time; provided, however, that, if and to the extent that the DGCL requires, the
payment of such expenses incurred by a director, officer, employee or agent in
such person's capacity as a director or officer in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director, officer, employee or agent,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section 6.6 or
otherwise.
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(b) If a claim under paragraph (a) of this Section is not paid
in full by the Corporation within 30 calendar days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall also be entitled to be paid
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standard of conduct which makes it permissible under
the DGCL for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because the claimant has met the applicable standard of
conduct set forth in the DGCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 6.7 The indemnification and advancement of expenses provided by
this Article VI shall not be deemed exclusive of any other rights to which any
person seeking indemnification or advancement of expenses may be entitled under
any Bylaw, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of, the persons indemnified in accordance with
Sections 6.1 and 6.2 shall be made to the fullest extent permitted by law. The
provisions of this Article VI shall not be deemed to preclude the
indemnification of, and advancement of expenses to, any person who is not
specified in Sections 6.1 or 6.2 but whom the Corporation has the power or
obligation to indemnify under the provisions of the DGCL, or otherwise. The
indemnification provided by this Article VI shall continue as to a person who
has ceased to be a director, officer, employee or agent of the Corporation and
shall inure to the benefit of the heirs, executors and administrators of such
person.
Section 6.8 The Corporation shall purchase and maintain insurance on
behalf of every person who is or was a director or an officer on or prior to the
Transition Date, and the Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or an officer after the Transition
Date, or any person who at any time is or was an officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article VI.
Section 6.9 For purposes of this Article VI, reference to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article VI with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
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Section 6.10 No director of this Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of the law, (iii) under Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal benefit. If
the DGCL is hereafter amended to authorize corporate action further limiting or
eliminating the personal liability of directors, then the liability of each
director of the Corporation shall be limited or eliminated to the fullest extent
permitted by the DGCL as so amended from time to time.
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