EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
("Agreement") is made and entered into this 7th day of October, 2005 between
Isle of Capri Casinos, Inc., a Delaware corporation (the "Company") and Xxxxxx
Xxxxxxxxx ("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 and replaces the employment
agreement currently in place between the “Company” and the
“Employee”.
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, (hereinafter
collectively referred to as the “Company”) for an initial period of one (1) year
from and after the Effective Date of this Agreement (the "Initial Term") and
for
successive one-year periods (the "Renewal Terms"), unless terminated at an
earlier date in accordance with Section 3 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 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; provided, however, that Employee shall not be entitled
to any additional compensation for serving as an officer of the Company. From
and after the Effective Date, Employee shall continue to be an executive officer
of the Company with the title of Executive
Chairman of the Company.
(c) Performance
of Duties. Employee
agrees to serve the Company faithfully and to the best of his ability and to
devote an appropriate amount of his time, attention and efforts to the business
and affairs of the Company during the Term of Employment. The Company recognizes
that the employee has other obligations in addition to his responsibilities
with
the Company.
(d) Compensation. During
the Term of Employment, the Company shall pay to Employee as compensation for
services to be rendered hereunder an aggregate base salary of $200,000 per
year,
payable in equal monthly, or more frequent payments, subject to increases,
if
any, as may be determined by the Company. Employee shall also be eligible to
participate in any stock option plans of the Company. In addition to the base
salary, any bonuses, and participation in stock option plans, Employee shall
be
eligible to participate in any employee benefit plans or programs of the Company
as are or may be made generally available to employees of the Company and those
made available to officers of the Company. The Company 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 policies
for expense verification.
3. Termination.
(a) The
Term
of Employment shall terminate prior to its expiration in the event that at
any
time during such term:
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(i)
|
The
Company delivers a 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 Section 5 of this agreement. If Employee is terminated for cause,
there
shall be no severance paid to Employee and his benefits shall terminate,
except as may be provided by law.
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| (ii) |
The
Company for any other reason terminates the Term of Employment. If
Employee signs a General Release in a form acceptable to the Company
that
releases the Company from any and all claims that Employee may have
and
affirmatively agrees not to violate any of the provisions of Section
5
hereof, Employee shall be entitled to continue to receive his salary
and,
to the extent legally permissible continue to participate in the
employee
benefit programs for a period of 24 months from and after such termination
or until new employment begins, which ever occurs first. If Employee
fails
to sign the form, Employee shall not be entitled to any continuing
payments or benefits. In lieu of monthly payments, a lump sum award
may be
authorized by the Board of Directors. Employee shall be provided
out-placement service with an out-placement firm or service selected
by
the Company and at the reasonable expense of the Company.
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| (iii) |
Employee
for any reason voluntarily terminates the Term of Employment. In
said
event, Employee shall not be entitled to any compensation and his
benefits
shall terminate, except as may be provided by law, from and after
termination.
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| (iv) |
However,
if Employee voluntarily terminates the Term of Employment due to
Retirement all stock options shall become fully vested and exercisable
and
the Employee’s deferred bonus payments shall be fully vested and paid. The
term “Retirement” shall mean the termination by Employee of his employment
by reason of reaching the age of 65 or such later date approved by
the
Board of Directors.
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|
(v)
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Employee
dies or becomes disabled as determined in good faith by the Board
of
Directors. Employee, or his estate, shall continue to receive his
salary
and, to the extent legally permissible continue to participate in
the
employee benefit programs for a period of 24 months from and after
such
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. 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.
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(b) Except
as
provided above, the vesting of stock options and deferred bonus payments shall
be governed by the provisions of the Company’s Stock Option Plans and Deferred
Bonus Plan.
4. Change
In Control of the Company.
A
change in control of the Company defined as 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:
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(i)
|
24
month's salary paid as salary continuation plus a lump 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.
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| (ii) |
Health
and welfare benefits shall be fully paid by the Company and run
concurrently with salary
continuation.
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| (iii) |
All
stock options shall become fully vested and exercisable and Employee’s
deferred bonus payments shall be fully vested and
paid.
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|
(iv)
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Employee
shall be provided out-placement services with a mutually agreed upon
out-placement firm or service selected by the Company and at the
reasonable expense of the Company.
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5. Confidentiality,
Non-competition
and Non-Solicitation.
(a) Ownership. Employee
agrees that all inventions, copyrightable 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.
(b) Confidentiality. Except
as
is consistent with Employee's duties and responsibilities within the scope
of
his employment with the Company, 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, including
all information that the Company 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, 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.
(c) 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 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 owns, renders or proposes to render consulting or management services.
(d) Non-solicitation. Employee
agrees not to solicit or recruit, directly or indirectly, any management
employee (director level and above) of the Company for employment during the
one
(1) year period after termination of his employment relationship with the
Company.
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, Arbitration. The
laws
of Delaware will govern the validity, construction, and performance of this
Agreement. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled by binding arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s)
may
be entered in any court having jurisdiction thereof. Both the Company and
Employee hereby consent to this binding arbitration provision.
(d) Remedies. Employee
understands that if he fails to fulfill his
obligations
under this Agreement, the damages to the Company 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.
(e) Captions. The
headings in this Agreement are for convenience only and do not affect the
interpretation of this Agreement.
(f) 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.
(g) Entire
Agreement. This
Agreement supersedes all previous and 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.
(h) Notices. All
notices and other communications required or 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.
0000
Xxxxx Xxxxx Xxxx
Xxxxxx
XX
00000
If
to the
Employee, to:
000
Xxxxx Xxxx
Xx.
Xxxxx 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:
/s/ XXXXXXX X. XXXXXXX
Date:
January
3, 2006
"EMPLOYEE"
By:
/s/
XXXXXX X. XXXXXXXXX
Date:
January 3, 2006
