EXHIBIT 10.49
FORM EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 6th
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day of January, 1999 between Isle of Capri Casinos, Inc., a Delaware corporation
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(the "Company") and Xxxxxxx Xxxxxxx ("Employee").
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In consideration of the mutual promises of this Agreement, the Company and
Employee agree as follows:
1. Effective Date. This Agreement shall be effective as of the date
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hereof and replaces the employment agreement currently in place between the
"Company" and the "Employee".
2. Employment.
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(a) Term. The Company hereby employs Employee, and Employee accepts
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such employment and agrees to perform services for the Company and/or its
subsidiaries, for an initial period of three (3) years from and after the
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Effective Date of initial Agreement (the "Initial Term") of April 7, 1997 and,
unless either party gives written notice to the other party at least ninety (90)
days before the end of the Initial Term or of any Renewal Term, for successive
one-year periods (the "Renewal Terms"), unless terminated at an earlier date in
accordance with Section 5 of this Agreement (the Initial Term and the Renewal
Terms together referred to as the "Term of Employment").
(b) Service with Company. During the Term of Employment, Employee
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agrees to perform reasonable employment duties as the Board of Directors of the
Company and/or its subsidiaries shall assign to him from time to time. Employee
also agrees to serve, for any period for which he is elected as an officer of
the Company and/or its subsidiaries; provided, however, that Employee shall not
be entitled to any additional compensation for serving as an officer of the
Company and/or its subsidiaries. From and after the Effective Date, Employee
shall continue to be an executive officer of the Company with the title of
Senior Vice President - Operations.
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(c) Performance of Duties. Employee agrees to serve the Company
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and/or its subsidiaries faithfully and to the best of his ability and to devote
substantially all of his time, attention and efforts to the business and affairs
of the Company and/or its subsidiaries during the Term of Employment.
(d) Compensation. During the Term of Employment, the Company and/or
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its subsidiaries shall pay to Employee as compensation for services to be
rendered
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hereunder an aggregate base salary of $216,000 per year, payable in equal
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monthly, or more frequent payments, subject to increases, if any, as may be
determined by the Company's Board of Directors. Employee shall also be eligible
to participate in any stock option plans of the Company and/or its subsidiaries.
In addition to the base salary, any bonuses, and participation in stock option
plans, Employee shall be eligible to participate in an employee benefit plans or
programs of the Company and/or its subsidiaries as are or may be made generally
available to employees of the Company or of its subsidiaries. The Company and/or
its subsidiaries will pay or reimburse Employee for all reasonable and necessary
out-of-pocket expense incurred by him in the performance of his duties under
this Agreement, subject to the presentment of appropriate vouchers in accordance
with the Company's and/or its subsidiaries policies for expense verification.
3. Confidentiality and Non-competition.
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(a) Ownership. Employee agrees that all inventions, copyrightable
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material, business and/or technical information, marketing plans, customer lists
and trade secrets which arise out of the performance of this Agreement are the
property of the Company and/or its subsidiaries.
(b) Non-competition. Employee agrees to the following covenant not
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to compete beginning on the effective date of this Agreement and continuing
until one year after termination of his employment relationship with the
Company:
Employee agrees not to compete, directly or indirectly
(including as an officer, director, partner, employee,
consultant, independent contractor, or more than 5% equity
holder of any entity) with the Company or any of its
subsidiaries in any way concerning the ownership,
development or management of any gaming operation or
facility within a 75-mile radius of any gaming operation or
facility with respect to which the Company or any of its
subsidiaries owns, renders or proposes to render consulting
or management services.
(c) Confidentiality. Except as is consistent with Employee's duties
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and responsibilities within the scope of his employment with the Company and/or
the subsidiaries, Employee agrees to keep confidential indefinitely, and not to
use or disclose to any unauthorized person, information which is not generally
known and which is proprietary to the Company or any subsidiary, including all
information that the Company or any subsidiary treats as confidential,
("Confidential Information"). Upon termination of Employee's employment,
Employee will promptly turn over to the Company all
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software, records, manuals, books, forms, documents, notes, letters, memoranda,
reports, data, tables, compositions, articles, devices, apparatus, marketing
plans, customer lists and other items that disclose, describe or embody
Confidential Information including all copies of the confidential Information in
his possession, regardless of who prepared them.
4. Remedies. Employee understands that if he fails to fulfill his
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obligations under this Agreement, the damages to the Company and/or its
subsidiaries would be very difficult to determine. Therefore, in addition to any
other rights or remedies available to the Company at law, in equity, or by
statute, Employee hereby consents to the specific enforcement of this Agreement
by the Company through an injunction or restraining order issued by the
appropriate court.
5. Termination or Change of Control.
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(a) Grounds for Termination. The Term of Employment set forth in
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Section 2(a) shall terminate prior to its expiration in the event that at any
time during such term:
(i) The Board of Directors of the Company delivers notice of
termination for "cause" to Employee. For purposes of this
section, "cause" shall mean any dishonesty, disloyalty,
material breach of corporate policies, gross misconduct on
the part of Employee in the performance of Employee's
duties hereunder or a violation of the non-competition or
confidentiality provision of this agreement. If Employee is
terminated for cause, there shall be no severance paid to
Employee.
(ii) Employee shall die or become disabled as determined in good
faith by the Board of Directors of the Company.
(iii) The Company for any reason terminates the Term of
Employment.
(b) Severance. If Employee dies or becomes disabled, or if the
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Company terminates the Term of Employment (by either terminating Employee's
employment or by giving the notice described in Section 2(a) to prevent a
Renewal Term) without "cause" (as defined above), then, providing that Employee
signs a General Release in a form acceptable to the Company that releases the
Company and its affiliated entities from any and all claims that Employee may
have against them, Employee shall be
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entitled to continue to receive his salary and, to the extent legally
permissible, employee benefits for a period of 12 months from and after such
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termination or until new employment begins, which ever occurs first. In lieu of
monthly payments, a lump sum award may be authorized by the Board of Directors.
If Employee dies or becomes disabled, Employee shall also be entitled to a lump
sum payment equal to the average of the last 3 years bonus payment inclusive of
deferred amounts. In the event of termination of employment without "cause", any
payment of an amount based upon prior bonus payments shall be subject to the
discretion of the Board of Directors. Except as provided above, Employee shall
not be entitled to any compensation beyond the date of the termination of the
Term of Employment. Health and welfare benefits shall continue for Employee
(with employee contribution) ending with the later of salary continuation
payments or the end of the original Term of Employment.
Employee shall be provided out-placement service with a mutually
agreed out-placement firm or service at the reasonable expense of the Company.
Vesting of stock options and any/all deferred bonuses due shall occur in the
event of death or disability and in the event of other termination such vesting
shall be determined by the Board in its sole discretion.
(c) Change In Control. A change in control of the Company defined as
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its sale, acquisition, merger or buyout to an unaffiliated person that has
significant effect or a reduction in the responsibilities, position or
compensation of Employee or if Employee is required to move the location of his
principal residence a distance of more than 35 miles prior to or during the
initial 12 months of the change of control will entitle Employee to the
following severance:
(i) 18 month's salary paid as salary continuation plus a lump
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sum payment equal to the average of the previous 3 years
bonus payment inclusive of deferred amounts. Salary
continuation shall terminate if and when Employee begins
new employment during the period of salary continuation.
(ii) Health and welfare benefits shall be fully paid by the
Company and run concurrently with salary continuation.
(iii) Vesting of stock options shall become fully accelerated and
exercisable by the Employee at the time of change of
control. Unexercised options will be cancelled on the
ninety-first calendar day following the end of salary
continuation.
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(iv) All deferred bonuses will be paid upon a change of control.
(v) Employee shall be provided out-placement services with a
mutually agreed upon out-placement firm or service at the
reasonable expense of the Company.
6. Miscellaneous.
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(a) Successors and Assigns. This Agreement is binding on and inures
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to the benefit of the Company's successors and assigns. The Company may assign
this Agreement in connection with a merger, consolidation, assignment, sale or
other disposition of substantially all of its assets or business. This Agreement
may not be assigned by Employee.
(b) Modification, Waivers. This Agreement may be modified or amended
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only by a writing signed by the Company, and Employee. The Company's failure, or
delay in exercising any right, or partial exercise of any right, will not waive
any provision of this Agreement or preclude the Company from otherwise or
further exercising any rights or remedies hereunder, or any other rights or
remedies granted by any law or any related document.
(c) Governing Law and Jurisdiction. The laws of Mississippi will
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govern the validity, construction, and performance of this Agreement. Any legal
proceeding related to this Agreement will be brought in a Mississippi court.
Both the Company and Employee hereby consent to the exclusive jurisdiction of
that court for this purpose.
(d) Captions. The headings in this Agreement are for convenience
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only and do not affect the interpretation of this Agreement.
(e) Severability. To the extent any provision of this Agreement
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shall be invalid or enforceable with respect to Employee, it shall be considered
deleted here from with respect to Employee and the remainder of such provision
and this Agreement shall be unaffected and shall continue in full force and
effect. In furtherance to and not in limitation of the foregoing, should the
duration or geographical extent of, or business activities covered by, any
provision of this Agreement be in excess of that which is valid and enforceable
under applicable law with respect to Employee, then such provision shall be
construed to cover only that duration, extent or activities which are validly
and enforceably covered with respect to Employee. Employee acknowledges the
uncertainty of the law in this respect and expressly stipulates that this
Agreement be given the
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construction which renders its provisions valid and enforceable to the maximum
extent (not exceeding its expressed terms) possible under applicable laws.
(f) Entire Agreement. This Agreement supersedes all previous and
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contemporaneous oral negotiations, commitments, writings and understandings
between the parties concerning the matters herein or therein, including without
limitation, any policy of personnel manuals of the Company.
(g) Notices. All notices and other communications required or
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permitted under this Agreement shall be in writing and sent by registered first-
class mail, postage prepaid, and shall be deemed delivered upon hand delivery or
upon mailing (postage prepaid and by registered or certified mail) to the
following address:
If to the Company, to:
Isle of Capri Casinos, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxx XX 00000
If to the Employee, to:
00000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxx XX 00000
These addresses may be changed at any time by like notice.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed in
a manner appropriate for such party as of the date first above written.
ISLE OF CAPRI CASINOS, INC.
By:___________________________________
"EMPLOYEE"
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