EXHIBIT 10.47
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into this 25th day
of July, 1995 between Casino America, Inc., a Delaware corporation (the
"Company") and Xxxxxx X. Xxxxx ("Employee").
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 hereof.
2. Employment.
(a) Term. The Company hereby employs Employee, and Employee accepts 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
Effective Date of this Agreement (the "Initial Term") 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 Term") 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 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 August 14,
1994 Employee shall be a executive officer of the Company with the initial
title being Vice President, Human Resources.
(c) Performance of Duties. Employee agrees to serve the Company 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 its
Subsidiaries shall pay to Employee as compensation for services to be
rendered hereunder an aggregate base salary of $100,000 per year beginning
August 14, 1994, payable in equal 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,
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Employee shall receive an automobile allowance of $500.00 per month and
shall be eligible to participate in such 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.
(a) Ownership. Employee agrees that all inventions, copyrightable material,
business and/or technical information 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 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 renders or proposes to render
consulting or management services.
(c) Confidentiality. Except as is consistent with Employee's duties and
responsibilities within the scope of his employment with the Company and/or
the Subsidiaries, Employee agrees 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 software, records, manuals, books, forms, documents, notes,
letters, memoranda, reports, data, tables, compositions, articles,
devices, apparatus 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.
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4. Remedies.
Employee understands that if he fails to fulfill his 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.
(a) Grounds for Termination. The Term of Employment set forth in Section
2(a) shall terminate prior to its expiration in the event that at any time
during such term:
(i) Employee shall die or become disabled as determined in good faith by
the Board of Directors of the Company, or
(ii) The Board of Directors of the Company delivers notice of termination
for "cause" to Employee. For purposes of this section, "cause" shall mean:
(1) and dishonesty, disloyalty or gross misconduct on the part of Employee
in the performance of Employee's duties hereunder; (2) any breach of
Company and/or the Subsidiaries policies or failure on the part of Employee
to perform duties assigned to Employee by the Company's Board of Directors,
which breach or failure is not remedied by Employee within 30 days after
notice thereof is given by the Company to Employee; (3) Employee's failure
to be approved as an officer or employee of the Company by any governmental
licensing agency; or (4) any event or circumstance regarding Employee which
may, in the judgment of the Board of Directors of the Company, result in
(i) the disapproval, modification, or non-renewal of any contract under
which the Company or any Subsidiary has sole or shared authority to own,
develop, manage or consult with any gaming operations, or (ii) the loss or
non-reinstatement of any license or franchise from any governmental agency
held by the Company or an Subsidiary to conduct any portion of the business
of the Company or any Subsidiary, which license or franchise is conditioned
upon employees or officers of the Company meeting certain criteria.
(b) Severance.
The Company may terminate the Term of Employment at any time for any
reason. If the 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", then, provided
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 entitled to
continue to receive his salary and employee benefits for a period of twelve
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(12) months from and after such termination. Except as provided in the
immediately preceding sentence, Employee shall not be entitled to any
compensation beyond the date of a termination of the Term of Employment.
6. Miscellaneous.
(a) Successors and Assigns. This Agreement is binding on and inures 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 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 govern the
validity, construction, and performance of this Agreement. Any legal
proceeding related to this Agreement will be brought in a Delaware 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 only and
do not affect the interpretation of this Agreement.
(e) Severability. To the extent any provision of this Agreement 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 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
contemporaneous oral negotiations, commitments, writings and
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understandings between the parties concerning the matters herein or
therein, including without limitation, any policy of personnel manuals of
the Company.
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.
CASINO AMERICA, INC.
By: /s/ SIGNATURE APPEARS HERE
---------------------------
Its President
"EMPLOYEE"
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
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