EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
effective this ____ day of April 2000, by and between Xxxxxxx Xxxxxxx
(hereinafter referred to as "Employee") and Peninsula Gaming Company, LLC, a
Delaware limited liability company (hereinafter referred to as "Employer").
WHEREAS, the Employer and the Employee desire to enter into an employment
agreement on the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the promises made in this Agreement and
for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties, the parties agrees as follows:
1. TERM OF AGREEMENT. The term of the Agreement shall be for a three (3)
year period commencing April 1, 2000 through March 31, 2003 (the "Initial
Term"). This Agreement shall automatically renew and continue for successive
one-year terms commencing at the end of the Initial Term and every year
thereafter, unless either party gives the other party written notice of the
party's intention not to renew this Agreement for a further one-year term at
least thirty (30) days prior to the expiration of a term, unless terminated by
agreement of the parties or pursuant to Section 2 of this Agreement (the Initial
Term, together with any subsequent renewal period, hereinafter referred to as
the "Term").
2. TERMINATION. This Agreement may be terminated at any time before any
expiration date by the agreement of the parties, and may be terminated by
Employee upon ninety (90) days advance written notice to the Chief Executive
Officer or the General Manager of the Employer. In the event that this Agreement
is terminated by Employee upon ninety (90) days advance written notice, Employee
shall be entitled to continue receiving her regular salary for so long as
Employee is permitted to and actually continues to render services to Employer
during the ninety (90) day period following such notice. If Employee is directed
by Employer to cease work prior to expiration of the ninety (90) day period,
Employee shall nevertheless be entitled to receive her regular salary for the
ninety (90) day period. In addition, this Agreement may be terminated by the
Employer immediately upon the occurrence of any of the following events: (a)
Employee's death, (b) Employee becoming physically or mentally disabled (a
"Disability"), which Disability renders Employee unable to perform, as certified
by a mutually agreeable competent medical physician, a substantial portion of
Employee's duties hereunder for a continuous period of sixty (60) days or a
total of ninety (90) days in any three hundred sixty-five (365) day period, (c)
Employee's commission of an act of embezzlement, fraud, misappropriation against
the Employer, (d) Employee's conviction of, or entry of a plea of guilty or nolo
contendere or its equivalent of, a felony, (e) Employee's continued neglect or
failure to discharge Employee's duties or responsibilities or the repeated
taking of any action prohibited by Employee's immediate supervisor, the managing
member or the board of managers of the Employer materially affecting the
fundamental operating results of the Employer, or Employee's engagement of
conduct injurious to the Employer or having an adverse effect on the Employer's
reputation or business operations, all of which threatens or is likely to
threaten the licensed status of the Employee or the Employer, (f) the
revocation, suspension for more than thirty (30) days, or voluntary
relinquishment of any gaming license necessary for the performance of Employee's
duties hereunder, or (g) Employee's breach or violation of any material term or
material provision of this Agreement; provided, however, that, in the case of
clauses (e), (f) and (g) of this Section 2, Employee shall be entitled to thirty
(30) days notice of termination, during which thirty (30) day period Employee
shall have the right to remedy any such breach or default, but in no event will
Employee be entitled to more than one thirty (30) day notice for breach of
violation of the same offense; subsequent commission of the same offense shall
warrant immediate termination. In the event of a termination of this Agreement
by Employer, other than for violation or breach of subparagraphs (a), (b), (c),
(d), (e), (f) or (g) or this paragraph, during any Term of the Agreement,
Employee shall be entitled to receive as severance pay the greater of (a) the
balance of base compensation due to Employee for the remainder of the Term, or
(b) six month's compensation, which payments shall be made as they would
otherwise have become due under the payroll schedule of Employer. Employee shall
also be entitled to receive a prorated share of the cash bonus to which Employee
otherwise would be entitled had Employee's employment continued to the end of
the Term, as provided in paragraph 4(a).
3. DUTIES. Employee shall carry out the duties and responsibilities
generally as identified as the Assistant General Manager of the Employer,
consistent with the terms of the Position Description appended to the Agreement
as Exhibit A and which may be amended from time to time, consistent with the
above-defined general responsibilities by the Employer's Chief Executive
Officer. Employer acknowledges and agrees that Employee, in her sole discretion,
shall set the time period, number of hours and location that Employee works in
carrying out her duties as the Assistant General Manager under this Agreement.
Employer further acknowledges and agrees that Employee may provide consulting
and other services to third parties, provided such services do not significantly
interfere with the performance of Employee's duties as Assistant General Manager
under this Agreement, and further provided such services would not result in a
breach by Employee of the non-competition or non-disclosure agreements set forth
in Section 8 of this Agreement.
4. COMPENSATION AND BENEFITS.
a. Employee shall be paid by Employer (i) as compensation for her
services for the 2000 calendar year the base annual salary of One Hundred
Twenty Five Thousand Dollars ($125,000). Employee's base annual salary
shall be reviewed on an annual basis and adjusted upward annually by not
less than five percent (5%) of the prior year's compensation. In addition
to the base salary, upon completion of each year of service with the
Employer, Employee shall be entitled to receive a cash bonus payable by the
Employer based on Employee's performance during the previous employment
year, which shall be consistent with the bonus plan in place for department
directors of the Employer. If this Agreement is terminated prior to
completion of any Term, EMPLOYEE shall be eligible for a prorated bonus at
termination.
b. To the extent not inconsistent with Employee's status as a salaried
employee under a continuing contract, Employee shall be entitled to all
benefits accorded
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full time employees of Employer in accordance with the terms of the
Employer's personnel policies.
5. CONSULTING OPTION. Until the expiration or termination of this
Agreement, at the time of and at any time after the Employer has a change of
General Manager or Chief Operating Officer from Xxxxxx Xxxxxx, the current
General Manager of Employer, Employee shall have the option to convert the
employment arrangement contemplated by this Agreement into a nonexclusive
consulting arrangement or maintain the existing employment agreement. Employee
shall provide Employer with thirty (30) days prior written notice of Employee's
intent to exercise the option. If the option is exercised by Employee, Employee
agrees to, at the request of Employer, act as a consultant with respect to the
Employer's excursion boat gambling business at Dubuque, Iowa during the
remaining Term of the Agreement (the "Consulting Services"), consistent with the
Employee's availability and knowledge. In consideration of any Consulting
Services to be provided by Employee hereunder, and in lieu of the compensation
pursuant to Section 4 hereof, Employer shall pay Employee a consulting fee of
50% of Employee's base salary per annum for the first year and 40% of Employee's
base salary per annum thereafter for each year in which Employee is engaged as a
consultant, payable in equal quarterly installments at the beginning of each
quarter of such year. Employer shall also reimburse and pay Employee for any and
all reasonable expenses incurred by Employee in performing the Consulting
Services, including, but not limited to, reimbursement of travel expenses in the
event that Employee agrees to perform Consulting Services at a location other
than Employer's place of business in Dubuque, Iowa. While Employee is engaged as
a consultant during the Term of this Agreement, Employee shall (i) be an
independent contractor with full power and authority to select the means, manner
and method of performing the Consulting Services without direction or control of
Employer, (ii) not be an agent or employee of the Employer, (iii) have no right
or power to bind the Employer under any agreement or to transact any business or
make any representations or promises in the Employer's name or on its behalf,
except insofar as she is expressly authorized to do so in writing by the
Employer, and (iv) continue to be bound by the provisions of paragraph 8(c)(1)
below. In her capacity as a consultant hereunder, Employee shall be entitled
during the Term to provide consulting services to other persons or entities that
are not directly competing with the Employer, engaged in the casino or gaming
business located within a 50 mile radius of Dubuque, Iowa.
6. SALE OF EMPLOYER'S BUSINESS. In the event the controlling interest in
the Employer or substantially all of the Employer's assets and operations are
transferred or sold and the sale or transfer is closed at any time during the
Term of this Agreement, Employee shall receive at the time of closing as
severance pay an amount equal to twelve (12) months' base salary. This paragraph
shall not be applicable so long as the transfer is to or for the benefit of
Xxxxx Xxxxxxx or so long as Xxxxx Xxxxxxx remains as Managing Member and/or CEO
of the Employer.
7. INDEMNIFICATION. Employer shall indemnify, defend and hold and save
Employee, her heirs, administrators or executors and each of them harmless from
any and all actions and causes of action, claims, demand, liabilities, losses,
damages or expenses, of whatsoever kind and nature, including judgments,
interest and reasonable attorney's fees and all other reasonable costs, expenses
and charges which Employee, her heirs, administrators or
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executors and each of them shall or may at any time or from time to time,
subsequent to the effective date of this Agreement, sustain or incur, or become
subject to by reason of any claim or claims against Employee, her heirs,
administrators or executors and each of them while acting within the scope of
her employment, except for gross negligence, misconduct or criminal acts or
omissions on the part of the Employee, and provided that Employee, her heirs,
administrators or executors or one of them properly and promptly notifies
Employer of adverse claims or threatened or actual lawsuits. Employee, her
heirs, administrators or executors as appropriate, shall provide complete
cooperation to Employer, its attorneys and agents in such case to the extent
possible.
8. NON-COMPETITION AGREEMENT.
a. Both parties acknowledge that the Employee's position is one of
considerable responsibility and requires considerable training,
relationships and contacts with customers, clients and potential customers
and clients, and experience that it will take a substantial amount of
Employer's time to replace an employee who has received such training,
relationships, contacts and experience as are typically afforded by
Employer; and
b. As a condition of employment and continued employment of Employee
by Employer, the parties mutually agree that confidentiality of material
matters is required in connection with the business of Employer and in
connection with the operations and the names of Employer's customers and
clients, and that accordingly, it is vital that Employer be protected from
direct or indirect competition from key employees whose employment might be
terminated by or from Employer, said protection required during employment
and for a reasonable period of time after termination thereof.
c. It is hereby agreed by and between the parties that, as a part of
the valuable consideration of the employment and continued employment of
Employee by Employer:
(1) That Employee shall treat and keep secret all material
matters relating directly or indirectly to the business of Employer,
including but not limited to, the content of all manuals, memoranda,
production, marketing, promotional and training materials, financial
statements, sales and operations records, business methods, systems
and forms, production records, billing rates, cost rates, employee
salaries and work histories, customer and client lists, mailing lists,
processes, inventions, formulas, job production and cost records,
special terms with customers and clients or any other material
information relative to the past, present or prospective customers and
operations as completely confidential information entrusted to her
solely for use in her capacity as an employee of Employer. Employee
further agrees not to keep and/or use any papers, records, or any
information whatsoever relative to any of the matters referred to in
the preceding sentence, nor shall Employee furnish, make available or
otherwise divulge such information to any person during or after her
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employment by Employer, unless specifically instructed to do so in
writing signed by the Chief Executive Officer of Employer.
(2) That if for any reason Employee shall voluntarily or
involuntarily terminate her employment or Employer shall terminate
Employee, it is specifically agreed and understood that Employee, for
a period of one (1) year from the date of termination, shall not,
within a radius of fifty (50) miles of Dubuque, Iowa (the
"Territory"), directly or indirectly engage in, be interested in, or
in any manner whatsoever be connected with any casino located within
the Territory.
(3) That if for any reason Employee shall voluntarily or
involuntarily terminate her employment or Employer shall terminate
Employee, it is specifically agreed and understood that Employee, for
a period of one (1) year from the date of termination, shall not,
directly or indirectly, in any capacity whatsoever, hire or solicit
for employment any employee of Employer.
9. ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement contains the
entire agreement of the parties and there are no other promises or conditions in
any other agreement whether oral or written. This Agreement supersedes any prior
written or oral agreement between the parties.
10. AMENDMENTS. This Agreement may be modified or amended, if the amendment
is made in writing and is signed by both parties.
11. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid and enforceable, then such provision shall be deemed to be
written, construed and enforced as so limited.
12. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation of
that party's right to subsequently enforce and compel strict compliance with
every provision of this Agreement.
13. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Iowa.
14. REPRESENTATION. The undersigned persons executing this Agreement for
and on behalf of Employer as its sole Managing Member and as its General Manager
represent that they are fully authorized to sign this Agreement for and on
behalf of Employer, and Employee may rely upon this representation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective
the day and year first above written.
EMPLOYER: EMPLOYEE:
Peninsula Gaming Company, LLC
By /s/ M. Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
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M. Xxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Chief Executive Officer
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