EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This agreement ("Agreement") has been entered into effective the 1st day
of June, 2005 by and between President Casinos, Inc., a Delaware corporation
("Company"), and Xxxx X. Xxxxxxxx, an individual ("Executive").
RECITALS
The Board of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company and its stockholders to reinforce
and encourage the continued attention and dedication of the Executive to the
Company as a member of the Company's management and to assure that the
Company will have the continued dedication of the Executive. The Board
desires to provide for the continued employment of the Executive on the
terms hereof, and the Executive is willing to commit himself to continue to
serve the Company. Therefore, the Board has caused the Company to enter into
this Agreement.
IT IS AGREED AS FOLLOWS:
SECTION 1. DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS. For purposes of this Agreement, the following words and
phrases, whether or not capitalized, shall have the meanings specified
below, unless the context plainly requires a different meaning.
1.1(a) "CASH COMPENSATION" means the Executive's Annual Base Salary (as
defined in Section 2.4(a)) plus the Incentive Bonus (as defined in Section
2.4(b)).
1.1(b) "BOARD" means the Board of Directors of the Company.
1.1(c) "COMPANY" means President Casinos, Inc., a Delaware corporation.
1.1(d) "EMPLOYMENT PERIOD" means the period beginning on the Effective
Date and ending at the end of the TERM of this agreement.
1.1(e) "EFFECTIVE DATE" shall mean June 1, 2005.
1.1(f) "TERM" means the period that begins on the Effective Date and
ends on the earlier of: (i) December 1, 2005, or (ii) its Date of
Termination as defined herein.
1.2 GENDER AND NUMBER. When appropriate, pronouns in this Agreement used
in the masculine gender include the feminine gender, words in the singular
include the plural, and words in the plural include the singular.
1.3 HEADINGS. All headings in this Agreement are included solely for ease
of reference and do not bear on the interpretation of the text. Accordingly,
as used in this Agreement, the terms "Article" and "Section" mean the text
that accompanies the specified Article or Section of the Agreement.
1.4 APPLICABLE LAW. This Agreement shall be governed by and construed in
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accordance with the laws of the state of Missouri, without reference to its
conflict of law principles.
SECTION 2. TERMS AND CONDITIONS OF EMPLOYMENT
2.1 PERIOD OF EMPLOYMENT. Throughout the Term of this Agreement, the
Executive shall remain in the employ of the Company in accordance with the
terms and provisions of this Agreement.
2.2 POSITIONS AND DUTIES.
2.2(a) Throughout the Term of this Agreement, the Executive's position
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all material
respects with those assigned to, or held and exercised by, the Executive on
the Effective Date of this Agreement.
2.2(b) Executive is engaged as Chairman and Chief Executive Officer of
the Company and agrees to perform such duties and render such services
consistent therewith as may from time to time be reasonably required of him
by the Board of Directors of the Company (the "Board"), provided, however,
that Executive shall not be required to devote his full business time or
affairs to the Company during the term of this Agreement and shall only
serve the Company on an as-needed basis from time to time, and provided,
further that Executive may pursue his other business interests and engage in
other activities, such as activities involving charitable, educational,
religious and similar types of organizations (all of which are deemed to
benefit the Company), speaking engagements, membership on the boards of
directors of other organizations, and similar type activities.
2.3 SITUS OF EMPLOYMENT. Through the Term of this Agreement, the
Executive's services shall be performed at any appropriate location.
2.4 COMPENSATION. The Executive's annual Compensation and other benefits
described in this Section 2.4 shall be provided by the Company.
2.4(a) BASE SALARY. During the Term, the Executive shall receive a base
salary of $16,666 per month ("Base Salary") which shall be paid in
accordance with the regular payroll practice of the Company.
2.4(b) INCENTIVE BONUSES.
(i) In addition to Base Salary, the Executive shall be entitled to
participate in any incentive bonuses ("Incentive Bonuses") currently in
effect at the Company.
(ii) In further addition, in the event that the transaction between
the Company and Columbia Sussex closes during the Term on terms which have
been approved prior to the date of this Agreement in the Company's
bankruptcy proceedings, Executive, if then employed by the Company, shall
receive an additional amount equal to three (3) months' salary payable
within ten (10) days of such closing.
2.4(c) INCENTIVE, SAVINGS AND RETIREMENT PLANS. Throughout the Term of
this Agreement, the Executive shall be entitled to participate in all
incentive, savings and retirement plans generally available to other peer
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2.4(d) WELFARE BENEFIT PLANS. Throughout the Term of this Agreement (and
thereafter, subject to Section 4.1(c) hereof), the Executive and/or the
Executive's family, as the case may be, shall be eligible for participation
in and shall receive all benefits under welfare benefits plans, practices,
policies and programs provided by the Company (but limited, however, to
medical, prescription, dental, disability, employee life, group life,
accidental death and travel accident insurance plans and programs) to the
extent generally available to other peer executives of the Company.
2.4(e) EXPENSES. Throughout the Term of this Agreement, the Executive
shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most favorable
policies, practices and procedures generally applicable to other peer
executives of the Company.
2.4(f) FRINGE BENEFITS. Throughout the Term of this Agreement, the
Executive shall be entitled to such fringe benefits as generally are
provided to other peer executives of the Company.
2.4(g) OFFICE AND SUPPORT STAFF. Throughout the Term of this Agreement,
the Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to personal secretarial and other
assistance, at least equal to those generally provided to other peer
executives of the Company.
2.4(h) VACATION. Throughout the Term of this Agreement, the Executive
shall be entitled to paid vacation in accordance with the most favorable
plans, policies, programs and practices generally provided with respect to
other peer executives of the Company.
SECTION 3. TERMINATION OF EMPLOYMENT.
3.1 DEATH. The Executive's employment will terminate automatically upon
the Executive's death during the Employment Period.
3.2 DISABILITY. If the Company determines that the Disability of the
Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 7.1 of its intention to terminate
the Executive's employment. In such event, the Executive's employment with
the Company shall terminate effective on the thirtieth (30th) day after
receipt of such notice by the Executive (the "Disability Effective Date"),
provided that, within the thirty (30) days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties.
For purposes of this Agreement, "Disability" shall mean that the Executive
has been unable to perform the material duties of his position for a period
of thirty (30) days by reason of a physical and/or mental condition during
any 60-day period. "Disability" shall be deemed to exist when certified by a
physician selected by the Company or its insurers and acceptable to the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be withheld unreasonably). The Executive will submit to
such examinations and tests as such physician deems necessary to make any
such Disability determination.
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3.3 TERMINATION FOR CAUSE. The Company may terminate the Executive's
employment during the Employment Period for "Cause," which shall mean
termination based upon: (i) any breach or failure to perform duties or
follow instructions of the Board of Directors if not cured within thirty
(30) days after receipt of written notice of breach or failure, (ii) the
Executive's commission of fraud, misappropriation, embezzlement or other
acts of dishonesty, alcoholism, drug addiction or dependency or conviction
of a felony or gross misdemeanor if the Board of Directors determines such
conduct is materially adverse to the Company, (iii) the Executive's material
breach of any provision of this Agreement, if not cured within thirty (30)
days after written notice to Executive that a breach has occurred, (iv)
based upon the Executive testing positive for a controlled substance on
three occasions, (v) based upon the Executive failing on three occasions to
pass a blood alcohol test at the level set for being intoxicated in the
State in which the test is performed, or (vi) any gaming commission with
jurisdiction over a facility owned, operated or managed by the Company which
requires Executive's licensure, refuses or fails within a reasonable period
of time to grant a license to Executive or suspends or revokes a license
granted to Executive. Notwithstanding the foregoing, the Executive shall not
be deemed to have been terminated for Cause unless and until he receives a
Notice of Termination (as defined in Section 3.5) from the Chairman of the
Compensation Committee of the Board.
3.4 GOOD REASON. The Executive may terminate this employment with the
Company for "Good Reason," which shall mean termination based upon:
(i) a significant and adverse change in the nature or scope of
position, authority, duties or responsibility;
(ii) (a) the failure by the Company to continue in effect any material
(i) benefit or compensation plan, (ii) stock ownership plan, (iii) life
insurance plan, (iv) health and accident plan, or (v) disability plan to
which the Executive is entitled as specified in Section 2.4, (b) the taking
of any action by the Company which would adversely affect the Executive's
participation in, or materially reduce the Executive's benefits under, any
plans described in Section 2.4, or deprive the Executive of any material
fringe benefit enjoyed by the Executive as described in Section 2.4(f), or
(c) the failure by the Company to provide the Executive with the number of
paid vacation days to which the Executive is entitled as described in
Section 2.4(h), provided, however, if the Company discontinues one of the
foregoing on a Company-wide or executive-level basis, such action shall not
constitute Good Reason; or
(iii) a material breach by the Company of any provision of this
Agreement which has not been cured within thirty (30) days after receipt of
written notice of such material breach.
3.5 NOTICE OF TERMINATION. Any termination by the Company for Cause or
Disability, or by the Executive for Good Reason, shall be communicated by
Notice of Termination to the other party, given in accordance with Section
7.1. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated,
and (iii) if the Date of Termination (as defined below) is other than the
date of receipt
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of such notice, specifies the termination date (which date shall be not more
than fifteen (15) days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact
or circumstance which contributes to a showing of Good Reason or Cause shall
not waive any right of the Executive or the Company hereunder or preclude
the Executive or the Company from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
3.6 DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, the Date of
Termination shall be the date or receipt of the Notice of Termination or any
later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by him for Good Reason as provided in Section 3.4
hereof, the Date of Termination shall be the date on which the Company
receives notice from the Executive of termination, (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be, or (iv) if the Executive's employment is
terminated by the Company other than for Cause, death, or Disability, the
Date of Termination shall be the date of receipt of the Notice of
Termination.
SECTION 4. CERTAIN BENEFITS UPON TERMINATION.
4.1 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If (i) the Company shall
terminate the Executive's employment without Cause, or (ii) the Executive
shall terminate employment with the Company for Good Reason, the Executive
shall be entitled to the benefits provided below:
4.1(a) "Accrued Obligations": On the twentieth (20th) business day
following the Date of Termination, the Company shall pay to the Executive
the sum of (1) the Executive's Base Salary through the Date of Termination,
to the extent not previously paid, (2) any compensation previously deferred
by the Executive (together with any accrued interest or earnings thereon),
(3) any accrued vacation pay, in each case to the extent not previously
paid, and in the event of a termination pursuant to Section 4.1, 4.2, 4.3 or
4.4 hereof.
4.1(b) "Base Salary Continuation": For the remainder of the Term, the
Company shall pay on a monthly basis to the Executive, the Executive's
then-current Base Salary.
4.1(c) "Welfare Benefit Continuation": For the remainder of the Term,
the Company shall continue benefits to the Executive and/or the Executive's
family at least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies described in
Section 2.4(d) if the Executive's employment had not been terminated, in
accordance with the most favorable plans, practices, programs or policies of
the Company as those provided generally to other peer executives and their
families during the ninety (90) day period immediately preceding the
Effective Date, or, if more favorable to the Executive, as those provided
generally at any time after the Effective Date to other peer executives of
the Company and their families; provided, however, that if the Executive
becomes reemployed with another employer and is eligible to receive medical
or other welfare benefits under another employer-provided plan, the medical
and other welfare benefits described herein shall cease.
4.1(d) "Other Benefits": To the extent not previously paid or provided,
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the Company shall timely pay or provide to the Executive and/or the
Executive's family any other vested amounts or vested benefits required to
be paid or provided for which the Executive and/or the Executive's family is
eligible to receive pursuant to this Agreement and under any plan, program,
policy or practice or contract or agreement of the Company as those provided
generally to other peer executives and their families during the ninety (90)
day period immediately preceding the Effective Date or, if more favorable to
the Executive, as those provided generally after the Effective Date to other
peer executives of the Company and their families.
4.1(e) The provisions of Section 5 shall apply in the event of any
termination pursuant to this Section 4.1.
4.1(f) Pursuant to this Section 4.1(f), the Executive shall not be
required to mitigate the amount of any payment provided for in this Section
by seeking other employment or otherwise, nor shall the amount of any
payment provided for in this Section be reduced by any compensation earned
by the Executive as the result of employment by another employer after the
Date of Termination, or otherwise other than pursuant to Section 4.1(c).
4.2 DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for (i) payment of Accrued
Obligations which have vested (as defined in Section 4.1)(a)) (which shall
be paid to Executive's estate or beneficiary, as applicable, in a lump sum
in cash within twenty (20) days of the Date of Termination) and (ii) the
timely payment or provision of Other Benefits which have vested (as defined
in Section 4.1(d)), including death benefits pursuant to the terms of any
plan, policy or arrangement of the Company.
4.3 DISABILITY. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, this Agreement
shall terminate without further obligations to the Executive, other than for
(i) payment of Accrued Obligations (as defined in Section 4.1(a)) (which
shall be paid to the Executive in a lump sum in cash within twenty (20) days
of the Date of Termination) and (ii) the timely payment or provision of
Other Benefits which have vested (as defined in Section 4.1(d)), including
disability benefits pursuant to the terms of any plan, policy or arrangement
of the Company. The provisions of Section 5.1 and 5.2 shall apply in the
event of termination hereunder.
4.4 TERMINATION FOR CAUSE, OTHER THAN GOOD REASON. If the Executive's
employment shall be terminated for Cause during the Term, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive Accrued Obligations (as defined in
Section 4.1(a)). If the Executive terminates employment with the Company
during the Employment Period (excluding a termination for Good Reason), this
Agreement shall terminate without further obligations to the Executive,
other than for Accrued Obligations (as defined Section 4.1(a)). In such
case, all Accrued Obligations shall be paid to the Executive in a lump sum
in cash within thirty (30) days of the Date of Termination. If the
Executive's employment shall terminate for the reasons stated in this
Section, the provisions of Section 5 shall continue to apply.
4.5 NON-EXCLUSIVITY OF RIGHTS. Except as provided in Sections 4.1(c),
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nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by
the Company and for which the Executive may qualify nor shall anything
herein limit or otherwise affect such rights as the Executive may have under
any contract or agreement with the Company. Amounts which are vested
benefits of which the Executive is otherwise entitled to receive under any
plan, policy, practice or program of, or any contract or agreement with, the
Company at or subsequent to the Date of Termination, shall be payable in
accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
4.6 FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
the Executive or others other than an obligation on the part of the
Executive to repay money borrowed from the Company. The Company agrees to
pay to the full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest by the
Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee or
performance thereof (including as a result of any contest by the Executive
regarding the amount of any payment pursuant to this Agreement), provided,
however, in the event the Executive is unsuccessful in enforcing a
contractual right at issue no such reimbursement shall be made and, further
provided, Executive shall reimburse Company for its reasonable legal fees if
any claim by the Executive is found frivolous.
SECTION 5. NON-COMPETITION WITH AND SERVICES FOR THE COMPANY.
5.1 NON-COMPETE AGREEMENT.
5.1(a) It is agreed that either: (i) during the Term of this Agreement
and for a period ending one (1) year thereafter; or (ii) if the Executive's
employment is terminated during the Term of this Agreement, then until the
date one (1) year after the date of termination, the Executive shall not,
without prior written approval of the Board, become an officer, employee,
agent, partner, consultant or director of any business enterprise in
substantial direct competition (as defined in Section 5.1(b)) with the
Company.
5.1(b) For purposes of Section 5.1, a business enterprise with which the
Executive becomes associated as an officer, employee, agent, partner,
consultant or director shall be considered in substantial direct competition
if such entity competes with the Company in any business in which the
Company is engaged and is within the Company's market area (as defined
herein) as of the Date of Termination. The Company's market area is defined
for this purpose as the area which constitutes the St. Louis, Missouri
metropolitan area, and (a) if the Company becomes the successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise), after
the Effective Date, to all or substantially all of the business and/or
assets of another business enterprise, the geographical areas in which such
predecessor business enterprise conducts substantial business activity, (b)
any other metropolitan area where the Company is conducting gaming
operations under an effective gaming license, and (c) any metropolitan area
with respect to which the Company has expended more than five hundred
thousand dollars ($500,000) in development costs. In no event shall an
asserted violation of the provisions
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of this Section constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
5.2 CONFIDENTIAL INFORMATION. The Executive shall hold in fiduciary
capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its
affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by the Company
and which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the
Company, the Executive shall not, without the prior written consent of the
Company, or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone
other than the Company and those designated by it. In no event shall an
asserted violation of the provisions of this Section constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive
under this Agreement. The Executive and the Company agree that neither of
them shall disclose information of a derogatory nature about the other, that
the Executive shall return all Company property in his possession on
termination of employment, and that this Section 5.2 shall remain binding
notwithstanding termination of employment for any reason. The parties agree
that damages are an insufficient remedy if a party has breached the terms of
this Section 5.2 and that a request for equitable relief is permitted.
5.3 MODIFICATION. If any court of competent jurisdiction determines that,
consistent with the established precedent of the forum of jurisdiction, any
restriction contained in Section 5.1 of this Agreement is unenforceable or
unreasonable, a lesser restriction shall be enforced in its place to the
maximum extent deemed enforceable or reasonable, and the remaining covenants
and restrictions shall be enforceable independently of each other.
SECTION 6. SUCCESSORS.
6.1 SUCCESSORS OF EXECUTIVE. This Agreement is personal to the Executive,
and without the prior written consent of the Company, amounts receivable
hereunder shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal representatives.
6.2 SUCCESSORS OF COMPANY. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as herein before defined and any successor to its business
and/or assets which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
SECTION 7. MISCELLANEOUS.
7.1 NOTICE. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
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respective addresses as set forth below; provided that all notices to the
Company shall be directed to the attention of the President of the Company
with a copy to the Secretary of the Company, or to such other address as one
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt:
Notice to Executive:
Xxxx X. Xxxxxxxx
c/o J. Xxxxxx Xxxxxxxx Associates, Inc.
0000 Xxx Xxxx Xxx Xxxx.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Notice to Company:
President Casinos, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: President
7.2 VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
7.3 WITHHOLDING. The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
7.4 WAIVER. The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company
may have hereunder, including, without limitation, the right of the
Executive to terminate employment for Good Reason pursuant to Section 3.4
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
7.5 REPLACEMENTS OF PRIOR AGREEMENT. This Agreement supersedes and
replaces the Agreement between the undersigned and the Company dated
November 4, 1992, December 15, 1994 and June 26, 1998.
IN WITNESS WHEREOF, the Executive and the Company, pursuant to the
authorization from its Board, have caused this Agreement to be executed in
its name on its behalf, all as of the day and year first above written.
/s/ Xxxx X. Xxxxxxxx
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XXXX X. XXXXXXXX
PRESIDENT CASINOS, INC.
By /s/ Xxxx X. Xxxxxxxxx
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Name: XXXX X. XXXXXXXXX
Title: PRESIDENT
