EXHIBIT 10.83
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DATED: October 1, 1996
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EMPLOYMENT AGREEMENT
- by and among -
SANTA FE GAMING CORPORATION
("Employer")
- and -
XXXXXX X. LAND
("Employee")
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into on this
1st day of October, 1996, by and among Santa Fe Gaming Corporation, a Nevada
corporation ("Employer"), and Xxxxxx X. Land ("Employee").
W I T N E S S E T H :
WHEREAS, Employer is a corporation duly organized and existing under the
laws of the State of Nevada, maintains its principal place of business at 0000
X. Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, and is engaged in the business of
owning and operating casino/hotel properties in Las Vegas and Laughlin, Nevada,
and proposes to expand its legalized casino gaming business both within and
without the State of Nevada;
WHEREAS, Employer has entered into an agreement to operate certain
facilities of Santa Fe Gaming Corporation;
WHEREAS, in furtherance of its business, Employer has need of qualified,
experienced personnel;
WHEREAS, Employee is an adult individual presently residing at 0000 Xxxxxx
Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000;
WHEREAS, Employee has represented and warranted to Employer that Employee
possesses sufficient qualifications and expertise in order to fulfill the terms
of the employment stated in this Agreement; and
WHEREAS, Employer is willing to employ Employee, and Employee is desirous
of accepting employment from Employer, under the terms and pursuant to the
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing recitals, and in
consideration of the mutual covenants, agreements, understandings, undertakings,
representations, warranties and promises hereinafter set forth, and intending to
be legally bound thereby, Employer, and Employee do hereby covenant and agree as
follows:
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
1. DEFINITIONS. As used in this Agreement, the words and terms
hereinafter defined have the respective meanings ascribed to them herein, unless
a different meaning clearly appears from the context:
(a) "Cause" - means
(i) the convictions of Employee by a court of competent
jurisdiction of a felony or any other offense involving moral
turpitude or dishonesty;
(ii) the indictment of Employee by a state or federal grand jury
of competent jurisdiction or the filing of a criminal competent
jurisdiction or the embezzlement or misappropriation of funds or
for any act of dishonesty or lack of fidelity;
(iii) a decree of a court of competent jurisdiction that the
Employee is not mentally competent or is unable to handle his own
affairs;
(iv) the written confession by Employee of any act of dishonesty
or any embezzlement or misappropriation of funds;
(v) the payment (or, by the operations solely of the effect of
a deductible, the failure of payment) by a surety or insurer of a
claim under a fidelity bond issued for the benefit of Employer or
Employer's Affiliates reimbursing Employer or Employer's
Affiliates for a loss due the wrongful act or wrongful omission
to act of Employee;
(vi) Employee's breach of the restrictive covenants set forth in
Paragraphs 10 of this Agreement;
(vii) Employee's failure to secure or maintain in force and in
good standing any and all licenses, permits and/or approvals
required of Employee by the relevant governmental authorities for
the discharge of the obligations of Employee under this
Agreement; provided, however, that Employee's disability due to
illness or accident or any other mental or physical incapacity
shall not constitute "Cause" as defined herein;
(viii) Employee's poor work performance resulting in two
consecutive negative written performance appraisals. Performance
appraisals shall occur twice annually and shall serve as a formal
review of the employee's work performance and contribution to the
company. If on two consecutive performance appraisals the
employee is evaluated poorly, the employer reserves the right to
terminate this agreement. Employee's poor work performance would
include, but not be limited to;
(1) engaging in conduct that is injurious, monetarily or
otherwise, to Employer or Employer's Affiliates;
(2) substantial failure to perform in a professional manner, or
refusal to perform in a professional manner, any duty or duties
assigned by Employer;
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
(3) substantial failure to adhere, or refusal to adhere to any
policies, rules or procedures of the Employer; or
(4) engaging in conduct or in past conduct or affiliations which,
in the reasonable opinion of Employer, would adversely impact
Employer's, Employer, would adversely impact Employer's,
Employer's Affiliates' privileged licenses.
(b) "Complete Disability" - means the inability of Employee, due to
illness or accident or other mental or physical incapacity, to perform
his obligations under this Agreement for a period of ninety (90)
calendar days in the aggregate over a period of five hundred (500)
consecutive calendar days or less, such "Complete Disability" to
become effective upon the expiration of such ninetieth (90th) day.
(c) "Effective Date" - means the date first above written.
(d) "Employee" - means Employee as earlier defined in this Agreement.
(e) "Employer" - means Employer as earlier defined in this Agreement.
(f) "Employer's Affiliates" - means any parent, subsidiary or
affiliated corporation or other legal entity of Employer.
(g) "Prior Employment" - means any prior employment Employee has had.
2. PRIOR EMPLOYMENT. This Agreement supersedes and replaces any and all
prior employment agreements, whether written or oral, by and between Employee
and Employer, Employer's Affiliates. From and after the Effective Date,
Employee shall be the employee of Employer under the terms and pursuant to the
conditions set forth in this Agreement.
3. BASIC EMPLOYMENT AGREEMENT. Subject to the terms and pursuant to the
conditions hereinafter set forth, Employer hereby employs Employee during the
Term hereinafter specified to serve in the position of Senior Vice-President and
Chief Financial Officer of Santa Fe Gaming Corporation and with such duties not
inconsistent with those generally understood within the casino/hotel industry to
be those of a Senior Vice-President and Chief Financial Officer, as the same may
be modified and/or assigned to Employee by Employer. Notwithstanding the
foregoing, Employer and Employee hereby covenant and agree that, in the absence
of mutual consent of both Employer and Employee, Employee shall not be assigned
duties by Employer which
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
would diminish Employee's responsibility, authority, general status or
comparative compensation level within Employer's table of organization. In
addition and the foregoing notwithstanding, Employee shall devote such time to
Employer's Affiliates and as required by Employer, provided such duties are not
inconsistent with Employee's primary duties to Employer hereunder ("Position").
4. ACCEPTANCE OF EMPLOYMENT. Employee hereby accepts the employment set
forth hereunder, under the terms and pursuant to the conditions set forth in
this Agreement. Employee hereby covenants and agrees that, during the Term of
this Agreement, Employee will devote the whole of his working time and best
efforts solely to the performance of Employee's duties under this Agreement, and
the Employer shall be entitled to all of the income, benefits, or profits
arising from or incident to all work, work associations, services, or advise of
Employee, unless otherwise authorized by the Employee.
5. TERM. The Term of this Agreement shall consist of a term of one (1)
year commencing as of the Effective Date of this Agreement, unless sooner
terminated as provided in paragraph 6 of this Agreement. Employer must provide
Employee 90 day notice of Employer's intention not to renew this Agreement for
an additional one-year term. If Employer does not provide notice not to renew
this Agreement, the Agreement will automatically extend for a one-year period.
In the event the Employer gives notice not to renew, notice must be accompanied
by Employer's tender to Employee of the lump sum of payments due to Employee
pursuant to Section 7(a), (c), (d), (e), (f), (g) which in no event in the case
of Section 7(a) will be less than one-half of the annual base salary.
6. SPECIAL TERMINATION PROVISIONS. Notwithstanding the provisions of
Paragraph 5 of this Agreement, this Agreement shall terminate upon the
occurrence of any of the following events:
(a) the death of Employee;
(b) the giving of written notice from Employer to Employee of the
termination of this Agreement upon the Complete Disability of
Employee;
(c) the giving of written notice by Employer to Employee of the
termination of this Agreement upon the discharge of Employee for
Cause;
(d) the giving of written notice by Employee to Employer upon a
material breach of this Agreement by Employer, provided however,
Employer shall have a period of thirty (30) days after giving of such
notice to cure the breach or default;
(e) the giving of written notice by Employer to Employee of the
termination of this Agreement without Cause; provided, however, that
such notice
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
must be accompanied by Employer's tender to Employee of the lump sum
of payments due to Employee pursuant to Section 7(a), (c), (d), (e),
(f), (g) which in no event in the case of Section 7(a) will be less
than one-half of the annual base salary and Employer's commitment to
continue to provide to Employee the compensation set forth in the
entirety of Paragraph 7b of this Agreement;
(f) a transfer of substantially all of the assets of Santa Fe Gaming
to a person other than Xxxx X. Xxxxxx or if Xxxx Xxxxxx becomes
beneficial owner of less than 50% of the outstanding common stock of
Santa Fe Gaming; provided, however, that upon approval of such an
event by the Board of Directors that the Employer tender to Employee
the lump sum of payments due to Employee for services rendered
pursuant to Section 7(a), (b), (c), (d), (e), (f), (g) which in no
event in the case of Section 7(a) will be less than one-half of the
annual base salary;
(g) non-compliance under any financing agreement, including, but not
limited to, first mortgage financing for Santa Fe Hotel, Inc., Pioneer
Hotel, Inc., Sahara Las Vegas and Santa Fe Gaming Corp.; provided
however, that upon notice to the Board of Directors of Santa Fe Gaming
Corporation or any of its affiliates or subsidiaries of such an
occurence, that Employer tender to Employee the lump sum of payments
due to Employee for services rendered pursuant to Sections 7(a), (b),
(c), (d), (e), (f) which in no event in the case of Section 7(a) will
be less than one-half of the annual base salary;
(h) filing of a bankruptcy petition (voluntarily or involuntary, as
applicable) including in part or together Santa Fe Gaming Corporation,
its affiliates or subsidiaries, including but not limited to, Santa Fe
Hotel, Inc., Pioneer Hotel & Gambling Hall, Sahara Las Vegas Corp.,
and Santa Fe Valley, Inc.; provided, however, that upon the filing of
an involuntary petition or upon approval by the Board of Directors of
a voluntary petition that Employer tender to Employee the lump sum of
payments due to Employee for services rendered pursuant to Section
7(a), (b), (c), (d), (e), (f), (g) which in no event in the case of
Section 7(a) will be less than one-half of the annual base salary.
7. COMPENSATION TO EMPLOYEE. For and in complete consideration of
Employee's full and faithful performance of this duties under this Agreement,
Employer hereby covenants and agrees to pay to Employee, and Employee hereby
covenants and agrees to accept from Employer, the following items of
compensation:
(a) Base Salary. Employer hereby covenants and agrees to pay to Employee,
and Employee hereby agrees to accept from Employer, a minimum annual base
salary of (i) One Hundred Forty Thousand dollars ($140,000), payable in
accordance with the normal payroll practices of the Employer ("the Base
Salary"). Such Base Salary shall be exclusive of and in addition to any
other benefits which Employer may make available to Employee, including,
but
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
not limited to, any profit sharing plans, pension plans, retirement plans,
company life insurance plan, medical and/or hospitalization plans, or any
and all other benefit plans which may be in effect during the Term of this
Agreement. Employer shall deduct from this Base Salary all appropriate or
authorized federal income tax amounts and all other federal, state and
local taxes, including but not limited to existing or future FICA and
similar taxes.
(b) Employee Benefit Plans. Employer hereby covenants and agrees that it
shall include Employee, if otherwise eligible, in any profit sharing plans,
bonus participation plans, stock options plans, pension plans, retirement
plans, company life insurance plans, medical and/or hospitalization plans,
and/or any and all other benefit plans which may be placed in effect by
Employer during the Term of this Agreement. The Employer agrees to pay the
COBRA payments for the employee and one dependent until such time that the
Employee and one dependent are placed under the coverage of the employer.
(c) Expense Reimbursement. During the Term of this Agreement, Employer
shall either pay directly or reimburse Employee for Employee's reasonable,
necessary and customary expenses incurred for the benefit of Employer in
accordance with Employer's general policy regarding reimbursement, as the
same may be amended, modified or changed from time to time. Such
reimbursable expenses shall include, but are not limited to, reasonable
entertainment and promotional expenses, gift and travel expenses,
professional societies and fraternal organizations, and the like; provided,
however, such reimbursable expenses are approvied by Employer. Prior to
reimbursement, Employee shall provide Employer with sufficient detailed
invoices of such expenses in accordance with the then applicable guidelines
of the Internal Revenue Service so as to entitle Employer to a deduction
for such services.
(d) Licensing Expenses. Employer hereby covenants and agrees that the
Employer shall pay all reasonable and ordinary licensing fees and expenses
incurred by Employee in securing and maintaining such licenses and permits
required of Employee in order to perform his duties under this Agreement.
(e) Vacations and Holidays. Commencing as of the Effective Date of this
Agreement, Employee shall be entitled to annual paid vacation leave in
accordance with Employer's standard policy therefor, to be taken at such
times as selected by Employee and approved by Employer.
(f) Transportation Expenses. During the term of this Agreement, Employer
hereby agrees to furnish to Employee for Employee's exclusive use an
automobile. Such automobile shall be either leased or purchased by
Employer and Employer shall pay all insurance, maintenance, and repair
expenses incident to such automobile.
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
8. LICENSING REQUIREMENTS. Employer and Employee hereby covenant and
agree that, in order for Employee to discharge the duties required under this
Agreement, Employee may be required to submit for licensure by gaming regulatory
authorities. Employer shall pay for all licensing fees and expenses incurred by
Employee, including attorneys' fees and costs, in securing and maintaining such
licenses and permits required of Employee in order to perform his duties under
this Agreement. Such expenses shall be bourne by Employer.
9. CONFIDENTIALITY. Employee hereby warrants, covenants and agrees that,
without the prior express written approval of Employer, during such time as
Employee remains employed by Employer and for a period of 2 years after the
termination of this Agreement, Employee shall hold in the strictest confidence,
and shall not disclose to any person, firm, corporation or other entity, any of
Employer's proprietary or confidential date, including but not limited to (i)
information or other documents concerning Employer's, Employer's Affiliates
business, customers or suppliers, (ii) Employer's, Employer's Affiliates
marketing methods, files, and credit and collection techniques and files, (iii)
Employer's, Employer's Affiliates trade secrets and other "know-how" or
information not of public nature, regardless of how such information came to the
custody of Employee. The warranty, covenant and agreement set forth in this
Paragraph 10 shall not expire, shall survive this Agreement and shall be binding
upon Employee without regard to the passage of time or other events except as
expressly set forth herein.
10. RESTRICTIVE COVENANT. Employee hereby covenants and agrees that,
during such time as Employee remains employed by Employer, Employee shall not
directly or indirectly, either as a principal, agent, employee, employer,
consultant, partner, shareholder of a closely held corporation or shareholder in
excess of five per cent (5%) of a publicly traded corporation, corporate officer
or director, or in any other individual or representative capacity, engage or
otherwise participate in any manner or fashion in any business that is in
competition in any manner whatsoever with the principal business activity of
Employer, Employer's Affiliates, in the state of Nevada. Employee hereby further
covenants and agrees that the restrictive covenant contained in this Paragraph
10 is reasonable as to duration, terms and geographical area and that the same
protects the legitimate interests of Employer, imposes no undue hardship on
Employee, and is not injurious to the public.
11. BEST EVIDENCE. This Agreement may be executed in original and "Xerox"
or photostatic copies and each copy bearing original signatures in ink shall be
deemed an original.
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
12. SUCCESSION. This Agreement shall be binding upon and inure to the
benefit of Employer and Employee and their respective successors and assigns.
13. ASSIGNMENT. The rights, benefits and obligations of Employee under
this Agreement shall not be assignable. Any purported assignment in violation
of this Paragraph 14 shall be null and void and of no force and effect.
14. AMENDMENT OR MODIFICATION. This Agreement may not be amended,
modified, changed or altered except by a writing signed by both Employer and
Employee.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Nevada in effect on the Effective Date
of this Agreement without resort to any conflict of laws principles, and the
parties hereto specifically agree and consent that courts of the state of Nevada
shall have sole and exclusive jurisdiction over any matter brought under, or by
reason of, this Agreement.
16. NOTICES. Any and all notices required under this Agreement shall be
in writing and shall be either hand-delivered or mailed, certified mail, return
receipt requested, addressed to:
TO EMPLOYER: Santa Fe Gaming Corporation
0000 X. Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, President
With copy to: Xxxxxxx Xxxxxx
Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxxx Xxxxxx
XX Xxx 000
Xxxx, XX 00000-0000
TO EMPLOYEE: Xxxxxx X. Land
0000 Xxxxxx Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
All notices hand-delivered shall be deemed delivered as of the date actually
delivered. All notices mailed shall be deemed delivered as of three (3) business
days after the date postmarked. Any changes in any of the addresses listed
herein shall be amended by notice as provided in this Paragraph 16.
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
17. INTERPRETATION. The preamble recitals to this Agreement are
incorporated into and made a part of this Agreement; titles of paragraphs are
for convenience only and are not to be considered a part of this Agreement.
18. SEVERABILITY. In the event any one or more provisions of this
Agreement is declared judicially void or otherwise unenforceable, the remainder
of this Agreement shall survive and such provision(s) shall be deemed modified
or amended so as to fulfill the intent of the parties hereto.
19. DISPUTE RESOLUTION. Except for equitable actions seeking to enforce
the provisions of Paragraphs 9 and 10 of this Agreement which may be brought by
the Employer or Employer's Affiliates in any court of competent jurisdiction in
the state of Nevada, any and all claims, disputes, or controversies arising
between the parties hereto regarding any of the terms of this Agreement or the
breach thereof, on the written demand of either of the parties hereto, shall be
submitted to and be determined by final and binding arbitration held in Las
Vegas, Nevada, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. This agreement to arbitrate shall be
specifically enforceable in any state of federal court of competent jurisdiction
in the state of Nevada.
20. WAIVER. None of the terms of this Agreement, including this Paragraph
20, or any term, right or remedy hereunder shall be deemed waived unless such
waiver is in writing and signed by the party to be charged therewith and in no
event by reason of any failure to assert or delay in asserting any such term,
right or remedy or similar term, right or remedy hereunder.
21. PAROL. This Agreement constitutes the entire agreement between
Employer and Employee with respect to the subject matter hereto and this
Agreement supersedes any prior understandings, agreements or undertakings by and
between Employer and Employee with respect to the subject matter hereof.
23. GENERAL PROVISIONS.
(a) Time is of the essence.
(b) This Agreement has been carefully and fully examined by Employee
and Employee represents that the legal and factual contents hereof are
fully appreciated and comprehended by Employee. Further,
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
Employee has had ample opportunity to review this Agreement with legal
and/or such other counsel as deemed appropriate, if any. Employee has
decided to execute this Agreement having considered the various
advantages and possible detriments associated therewith. Although this
Agreement has been prepared by Employer, it is the product of
discussions and negotiations and should be construed fairly
accordingly to its terms and not against one party as the drafter
thereof.
(c) In the event an action is filed in relation to this Agreement, the
unsuccessful party in the action shall pay to the successful party, in
addition to all sums that the party may be order to pay, a reasonable
sum for the successful party's attorney fees.
IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND THEREBY, the parties hereto
have executed and delivered this Agreement as of the year and date first above
written.
EMPLOYER
Santa Fe Gaming Corporation, a
Nevada Corporation
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx,
President
EMPLOYEE
/s/ Xxxxxx X. Land
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Xxxxxx X. Land
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
