EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A," is entered into between the Mescalero Apache Tribe, a federally-recognized
Indian tribe, having offices at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000
("Employer"), and Xxxxx X. Xxxxxxx, an individual currently residing at 0000
Xxxxxx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000 ("Employee"), to be effective as of
December 12, 2002 (the "Effective Date").
WTTNESSETH
WHEREAS, Employer desires to employ Employee in the position set forth on
Exhibit "A" and under the terms and conditions set forth in this Employment
Agreement.
WHEREAS, Employee is willing to accept employment with Employer under the
terms and conditions set forth in this Employment Agreement; and
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
and obligations contained herein, Employer and Employee agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be employed by
Employer, beginning as of the Effective Date and continuing until the date
set forth on Exhibit "A" (the "Term"), subject to the terms and conditions
of this Agreement.
1.2 Employee initially shall be employed in the position set forth on Exhibit
"A." Employer may subsequently assign Employee to a different position or
modify Employee's duties and responsibilities; provided however, in the
event Employer substantially reduces the duties or responsibilities of
Employee, Employee may elect to terminate this Agreement under Section 3.2
(ii) and said termination shall constitute an Involuntary Termination for
purposes of Section 3.5. Employee agrees to serve in the assigned position
and to perform diligently and to the best of Employee's abilities the
duties and services appertaining to such position as determined by
Employer, as well as such additional or different duties and services
appropriate to such position which Employee from time to time may be
reasonably directed to perform by Employer. Employee shall at all times
comply with and be subject to such policies and procedures as Employer may
establish from time to time.
1.3 Employee shall, during the period of Employee's employment by Employer,
devote Employee's full business time, energy, and best efforts to the
business and affairs of Employer and its Enterprises or other entities.
Employee may not engage, directly or indirectly, in any other business,
investment, or activity that interferes with Employee' performance of
Employee's duties hereunder, is contrary to the interests of Employer, or
requires any significant portion of Employee's business time.
1.4 In connection with Employee's employment by Employer, Employer shall
endeavor to provide Employee access to such information pertaining to the
business and services of Employer as is appropriate for Employee's
employment responsibilities. Employer also shall endeavor to provide to
Employee the opportunity to develop business relationships with those of
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Employer's clients and potential clients that are appropriate for
Employee's employment responsibilities.
1.5 Employee acknowledges and agrees that at all times during the employment
relationship Employee owes fiduciary duties to Employer, including but not
limited to the fiduciary duties of the highest loyalty, fidelity and
allegiance to act at all times in the best interests of the Employer, to
make full disclosure to Employer of all information that pertains to
Employer's business and interests, to do no act which would injure
Employer's business, its interests, or its reputation, and to refrain from
using for Employee's own benefit or for the benefit of others any
information or opportunities pertaining to Employer's business or interests
that are entrusted to Employee or that Employee learned while employed by
Employer. Employee acknowledges and agrees that upon termination of the
employment relationship, Employee shall continue to refrain from using for
Employee's own benefit or the benefit of others any information or
opportunities pertaining to Employer's business or interests that were
entrusted to Employee during the employment relationship or that Employee
learned while employed by Employer. Employee agrees that while employed by
Employer and thereafter Employee shall not knowingly take any action that
interferes with the internal relationships between Employer and its
employees or representatives or interferes with the external relationships
between Employer and third parties.
1.6 It is agreed that any direct or indirect interest in, connection with, or
benefit from any outside activities, particularly commercial activities,
which interest might in any way adversely affect Employer or any of its
Enterprises or other entities, involves a possible conflict of interest. In
keeping with Employee's fiduciary duties to Employer, Employee agrees that
during the employment relationship Employee shall not knowingly become
involved in a conflict of interest with Employer or its affiliates, or upon
discovery thereof, allow such a conflict to continue. Moreover, Employee
agrees that Employee shall disclose to Employer's President any facts that
might involve such a conflict of interest that has not been approved by
Employer's President. Employer and Employee recognize that it is impossible
to provide an exhaustive list of actions or interests that constitute a
"conflict of interest." Moreover, Employer and Employee recognize there are
many borderline situations. In some instances, full disclosure of facts by
the Employee to Employer's President may be all that is necessary to enable
Employer or its affiliates to protect its interests. In others, if no
improper motivation appears to exist and the interests of Employer or its
affiliates have not suffered, prompt elimination of the outside interest
will suffice. In still others, it may be necessary for Employer to
terminate the employment relationship. Employer and Employee agree that
Employer's determination as to whether a conflict of interest exists shall
be conclusive. Employer reserves the right to take such action as, in its
judgment, will end the conflict.
1.7 Employee understands and acknowledges that the terms and conditions of this
Agreement constitute confidential information. Employee shall keep
confidential the terms of this Agreement and shall not disclose this
confidential information to anyone other than as required by law. Employee
acknowledges and understands that disclosure of the terms of this Agreement
constitutes a material breach of this Agreement and could subject Employee
to disciplinary action, including without limitation, termination of
employment.
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ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee's monthly base salary during the Term shall be not less than the
amount set forth under the heading "Monthly Base Salary" on Exhibit "A,"
subject to increase at the sole discretion of the Employer, provided
however, that Employee shall receive an annual cost of living increase
based on the percentage specified by Employer for all of Employer's
employees or a mutually agreeable federal governmental index, which shall
be paid in accordance with Employer's standard payroll practice. Any
calculation to be made under this Agreement with respect to Employee's
Monthly Base Salary shall be made using the then current Monthly Base
Salary in effect at the time of the event for which such calculation is
made.
2.2 While employed by Employer, Employee shall be allowed to participate, on
the same basis generally as other employees of Employer, in all general
employee benefit plans and programs, including improvements or
modifications of the same, which on the effective date or thereafter are
made available by Employer to all or substantially all of Employer's
employees. Such benefits, plans, and programs may include, without
limitation, paid vacation, paid sick leave, paid holidays, and medical,
health, and dental care, life insurance, disability protection, and pension
plans. Nothing in this Agreement is to be construed or interpreted to
provide greater rights, participation, coverage, or benefits under such
benefit plans or programs than provided to similarly situated employees
pursuant to the terms and conditions of such benefit plans and programs.
2.3 While employed by Employer, Employee shall be entitled to reimbursement for
all reasonable expenses, including travel and entertainment, incurred by
Employee in the performance of Employee's duties. Employee will maintain
records and written receipts as required by the Employer's policy and
reasonably requested by the Employer to substantiate such expenses.
2.4 Employer shall not by reason of this Article 2 be obligated to institute,
maintain, or refrain from changing, amending, or discontinuing, any such
incentive compensation or employee benefit program or plan, so long as such
actions are similarly applicable to covered employees generally. Moreover,
unless specifically provided for in a written plan document adopted by the
Mescalero Apache Tribal Council, none of the benefits or arrangements
described in this Article 2 shall be secured or funded in any way, and each
shall instead constitute an unfunded and unsecured promise to pay money in
the future exclusively from the general assets of Employer.
2.5 Employer may withhold from any compensation, benefits, or amounts payable
under this Agreement all federal, state, or other taxes as may be required
pursuant to any law or governmental regulation or ruling.
ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH
TERMINATION:
3.1 Notwithstanding any other provisions of this Agreement, Employer shall have
the right to terminate Employee's employment under this Agreement at any
time prior to the expiration of the Term for any of the following reasons:
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(i) For "cause" upon the determination by the Employer's President that
"cause" exists for the termination of the employment relationship. As
used in this Section 3.1 (i), the term "cause" shall mean [a]
Employee's gross negligence or willful misconduct in the performance
of the duties and services required of Employee pursuant to this
Agreement; [b] Employee has been convicted of a felony; [c] Employee
has willfully refused without proper legal reason to perform the
duties and responsibilities required of Employee under this Agreement
which remains uncorrected for thirty (30) days following written
notice to Employee by Employer of such breach; [d] Employee's
involvement in a conflict of interest as referenced in Section 1.6 for
which Employer makes a determination to terminate the employment of
Employee which remains uncorrected for thirty (30) days following
written notice to Employee by Employer of such breach; [e] Employee
has willfully engaged in conduct that Employee knows or should know is
materially injurious to Employer or any of its respective Enterprises
or other entities; [f] Employee's material breach of any material
provision of this Agreement or Tribal policy which remains uncorrected
for thirty (30) days following written notice to Employee by Employer
of such breach; [g] Employee violates the Indian Gaming Regulatory Act
or other applicable United States law as proscribed by Section 5.1; or
[h] Employee no longer has a valid Mescalero Apache Tribal Gaming
Commission Gaming License. It is expressly acknowledged and agreed
that the decision as to whether "cause" exists for termination of the
employment relationship by Employer is delegated to the Employer's
President for determination. If Employee disagrees with the decision
reached by Employer's President, the dispute will be limited to
whether Employer's President reached the decision in good faith;
(ii) for any other reason whatsoever, with or without cause, in the sole
discretion of the President of Employer;
(iii) upon Employee's death; or
(iv) upon Employee's becoming disabled so as the Employee is permanently
and totally unable to perform Employee's duties for Employer as a
result of any medically determinable physical or mental impairment as
supported by a written medical opinion to the foregoing effect by a
physician selected by Employer.
The termination of Employee's employment by Employer prior to the expiration of
the Term shall constitute a "Termination for Cause" if made pursuant to Section
3.1 (i); the effect of such termination is specified in Section 3.4. The
termination of Employee's employment by Employer prior to the expiration of the
Term shall constitute an "Involuntary Termination" if made pursuant to Section
3.1 (ii); the effect of such termination is specified in Section 3.5. The effect
of the employment relationship being terminated pursuant to Section 3.1 (iii) as
a result of Employee's death is specified in Section 3.6. The effect of the
employment relationship being terminated pursuant to Section 3.1 (iv) as a
result of the Employee becoming incapacitated is specified in Section 3.7.
3.2 Notwithstanding any other provisions of this Agreement except Section 8.6,
Employee shall have the right to terminate the employment relationship
under this Agreement at any time prior to the expiration of the Term of
employment for any of the following reasons:
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(i) a material breach by Employer of any material provision of this
Agreement which remains unconnected for thirty (30) days following
written notice of such breach by Employee to Employer; or
(ii) for any other reason whatsoever, in the sole discretion of Employee.
The termination of Employee's employment by Employee prior to the expiration of
the Term shall constitute an "Involuntary Termination" if made pursuant to
Section 3.2 (i); the effect of such termination is specified in Section 3.5. The
termination of Employee's employment by Employee prior to the expiration of the
Term shall constitute a "Voluntary Termination" if made pursuant to Section 3.2
(ii); the effect of such termination is specified in Section 3.3.
3.3 Upon a "Voluntary Termination" of the employment relationship by Employee
prior to expiration of the Term, all future compensation to which Employee
is entitled and all future benefits for which Employee is eligible shall
cease and terminate as of the date of termination. Employee shall be
entitled to pro rata salary through the date of such termination, but
Employee shall not be entitled to any individual bonuses or individual
incentive compensation not yet paid at the date of such termination.
3.4 If Employee's employment hereunder shall be terminated by Employer for
Cause as defined in paragraph 3.1 prior to expiration of the Term, all
future compensation to which Employee is entitled and all future benefits
for which Employee is eligible shall cease and terminate as of the date of
termination. Employee shall be entitled to pro rata salary through the date
of such termination, but Employee shall not be entitled to any individual
bonuses or individual incentive compensation not yet paid at the date of
such termination.
3.5 Upon an Involuntary Termination of the employment relationship by either
Employer or Employee prior to the expiration of the Term, Employee shall be
entitled, in consideration of Employee's continuing obligations hereunder
after such termination (including, without limitation, Employee's
non-competition obligations), to receive the then current Monthly Base
Salary, benefits and allowance continuation as set forth in Exhibit "A" for
a period of six months or until employee has secured employment with
another employer. Employee shall not be under any duty or obligation to
seek or accept other employment following Involuntary Termination and the
amounts due Employee hereunder shall not be reduced or suspended if
Employee accepts subsequent employment. Employee's rights under this
Section 3.5 are Employee's sole and exclusive rights against Employer, its
Enterprises or their entities of the Employer, and Employer's sole and
exclusive liability to Employee under this Agreement, in contract, tort, or
otherwise, for any Involuntary Termination of the employment relationship.
Employee covenants not to xxx or lodge any claim, demand or cause of action
against Employer for any sums for Involuntary Termination other than those
sums specified in this Section 3.5. If Employee breaches this covenant,
Employer shall be entitled to recover from Employee all sums expended by
Employer (including costs and attorneys fees) in connection with such suit,
claim, demand or cause of action.
3.6 Upon termination of the employment relationship as a result of Employee's
death, Employee's heirs, administrators, or legatees shall be entitled to
Employee's pro rata salary through the date of such termination, but
Employee's heirs, administrators, or legatees shall not
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be entitled to any individual bonuses or individual incentive compensation
not yet paid to Employee at the date of such termination.
3.7 Upon termination of the employment relationship as a result of Employee's
incapacity, Employee shall be entitled to his or her pro rata salary
through the date of such termination, but Employee shall not be entitled to
any individual bonuses or individual incentive compensation not yet paid to
Employee at the date of such termination.
3.8 Notwithstanding any provision herein to the contrary, upon a termination of
Employee's employment under any of the circumstances described in Sections
3.5, 3.6 or 3.7 above, Employee shall be entitled to receive a pro-rata
annual bonus payment through the date of such termination of employment.
3.9 In all cases, the compensation and benefits payable to Employee under this
Agreement upon termination of the employment relationship shall be offset
against any amounts to which Employee may otherwise be entitled under any
and all severance plans, and policies of Employer.
3.10 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement that are continuing obligations,
including, without limitation, Employee's obligations under Articles 6 and
7.
3.11 This Agreement governs the rights and obligations of Employer and Employee
with respect to Employee's salary, bonuses, and other perquisites of
employment.
ARTICLE 4: CONTINUATION OF EMPLOYMENT BEYOND TERM; TERMINATION AND EFFECTS OF
TERMINATION:
4.1 Should Employee remain employed by Employer beyond the expiration of the
Term specified on Exhibit "A," such employment shall convert to a
month-to-month relationship terminable at any time by either Employer or
Employee for any reason whatsoever, with or without cause. Upon such
termination of the employment relationship by either Employer or Employee
for any reason whatsoever, all future compensation to which Employee is
entitled and all future benefits for which Employee is eligible shall cease
and terminate. Employee shall be entitled to pro rata salary through the
date of such termination, but Employee shall not be entitled to any
individual bonuses or individual incentive compensation not yet paid at the
date of such termination.
ARTICLE 5: MESCALERO APACHE TRIBE LAWS, MESCALERO APACHE TRIBAL GAMING
COMMISSION REGULATIONS AND UNITED STATES INDIAN GAMING REGULATORY ACT
AND OTHER LAWS:
5.1 Employee shall at all times comply with applicable Mescalero Apache Tribal
laws, Mescalero Apache Tribal Gaming Commission regulations and United
States laws applicable to Employee's actions on behalf of Employer,
including specifically, without limitation, the Tribal Gaming Ordinance and
the United States Indian Gaming Regulatory Act, generally codified in 25
USC 2701 ("IGRA"), as the IGRA may hereafter be amended, and/or its
successor statutes. If Employee pleads guilty to or nolo contendere or
admits civil or criminal
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liability under the IGRA or other applicable United States law, or if a
court finds that Employee has personal civil or criminal liability under
the IGRA or other applicable United States law, or if a court finds that
Employee committed an action resulting in any Mescalero Apache Tribal
Resort Enterprise or other Tribal Enterprise or entity having civil or
criminal liability or responsibility under the IGRA or other applicable
United States law with knowledge of the activities giving rise to such
liability or knowledge of facts from which Employee should have reasonably
inferred the activities giving rise to liability had occurred or were
likely to occur, such action or finding shall constitute "cause" for
termination under this Agreement unless Employer's highest applicable level
of Employer's management determines that the actions found to be in
violation of the IGRA or other applicable United States law were taken in
good faith and in compliance with all applicable policies of Employer.
ARTICLE 6: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
6.1 All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed
or acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer (whether during business hours or
otherwise and whether on Employer's premises or otherwise) which relate to
Employer's business, products or services (including, without limitation,
all such information relating to corporate opportunities, research,
financial and sales data, pricing and trading terms, evaluations, opinions,
interpretations, acquisition prospects, the identity of customers or their
requirements, the identity of key contacts within the customer's
organizations or within the organization of acquisition prospects, or
marketing and merchandising techniques, prospective names, and marks) shall
be disclosed to Employer and are and shall be the sole and exclusive
property of Employer. Moreover, all drawings, memoranda, notes, records,
files, correspondence, drawings, manuals, models, specifications, computer
programs, maps and all other writings or materials of any type embodying
any of such information, ideas, concepts, improvements, discoveries, and
inventions are and shall be the sole and exclusive property of Employer.
6.2 Employee acknowledges that the business of Employer, its Enterprises and
other entities is highly competitive and that their strategies, methods,
books, records, and documents, their technical information concerning their
products, equipment, services, and processes, procurement procedures and
pricing techniques, the names of and other information (such as credit and
financial data) concerning their customers and business affiliates, all
comprise confidential business information and trade secrets which are
valuable, special, and unique assets which Employer, its Enterprises and
other entities use in their business to obtain a competitive advantage over
their competitors. Employee further acknowledges that protection of such
confidential business information and trade secrets against unauthorized
disclosure and use is of critical importance to Employer, its Enterprises
and other entities in maintaining their competitive position. Employee
hereby agrees that Employee will not, at any time during or after his or
her employment by Employer, make any unauthorized disclosure of any
confidential business information or
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trade secrets of Employer, its Enterprises and other entities, or make any
use thereof, except in the carrying out of his or her employment
responsibilities hereunder. Employer its Enterprises and other entities
shall be third party beneficiaries of Employee's obligations under this
Section. As a result of Employee's employment by Employer, Employee may
also from time to time have access to, or knowledge of, confidential
business information or trade secrets of third parties, such as customers,
suppliers, partners, joint venturers, and the like, of Employer, its
Enterprises and other entities. Employee also agrees to preserve and
protect the confidentiality of such third party confidential information
and trade secrets to the same extent, and on the same basis, as Employer's
confidential business information and trade secrets. Employee acknowledges
that money damages would not be sufficient remedy for any breach of this
Article 6 by Employee, and Employer shall be entitled to enforce the
provisions of this Article 6 by terminating any payments then owing to
Employee under this Agreement and/or to specific performance and injunctive
relief as remedies for such breach or any threatened breach. Such remedies
shall not be deemed the exclusive remedies for a breach of this Article 6,
but shall be in addition to all remedies available at law or in equity to
Employer, including the recovery of damages from Employee and his or her
agents involved in such breach.
6.3 All written materials, records, and other documents made by, or coming into
the possession of, Employee during the period of Employee's employment by
Employer which contain or disclose confidential business information or
trade secrets of Employer, its Enterprises and other entities shall be and
remain the property of Employer, its Enterprises and other entities, as the
case may be. Upon termination of Employee's employment by Employer, for any
reason, Employee promptly shall deliver the same, and all copies thereof,
to Employer.
6.4 If, during Employee's employment by Employer, Employee creates any original
work of authorship fixed in any tangible medium of expression which is the
subject matter of copyright (such as videotapes, written presentations on
acquisitions, computer programs, drawings, maps, architectural renditions,
models, manuals, brochures, or the like) relating to Employer's business,
products, or services, whether such work is created solely by Employee or
jointly with others (whether during business hours or otherwise and whether
on Employer's premises or otherwise), Employee shall disclose such work to
Employer. Employer shall be deemed the author of such work if the work is
prepared by Employee in the scope of his or her employment; or, if the work
is not prepared by Employee within the scope of his or her employment but
is specially ordered by Employer as a contribution to a collective work, as
a part of a motion picture or other audiovisual work, as a translation, as
a supplementary work, as a compilation, or as an instructional text, then
the work shall be considered to be work made for hire and Employer shall be
the author of the work. If such work is neither prepared by the Employee
within the scope of his or her employment nor a work specially ordered and
is deemed to be a work made for hire, then Employee hereby agrees to
assign, and by these presents does assign, to Employer all of Employee's
worldwide right, title, and interest in and to such work and all rights of
copyright therein.
6.5 During the period of Employee's employment by Employer and thereafter,
Employee shall assist Employer and its nominee, at any time, in the
protection of Employer's worldwide right, title, and interest in and to
information, ideas, concepts, improvements, discoveries, and inventions,
and its copyrighted works, including without limitation, the execution of
all formal assignment documents requested by Employer or its nominee and
the execution of all lawful oaths and applications for applications for
patents and registration of copyright in the United States and foreign
countries.
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ARTICLE 7: POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
7.1 As part of the consideration for the compensation and benefits to be paid
to Employee hereunder, in keeping with Employee's duties as a fiduciary and
in order to
[PAGE 10 MISSING]
ARTICLE 8: MISCELLANEOUS:
8.1 For purposes of this Agreement the terms "Enterprise" or "entities" means
an entity who directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with the Mescalero
Apache Tribe.
8.2 Employee shall refrain, both during the employment relationship and after
the employment relationship terminates, from publishing any oral or written
statements about Employer, its Enterprises and other entities, or any of
such entities' officers, employees, agents or representatives that are
slanderous, libelous, or defamatory; or that disclose private or
confidential information about Employer, its Enterprises and other
entities, or any of such entities' business affairs, officers, employees,
agents, or representatives; or that constitute an intrusion into the
seclusion or private lives of Employer, its Enterprises and other entities,
or such entities' officers, employees, agents, or representatives; or that
give rise to unreasonable publicity about the private lives of Employer,
its Enterprises and other entities, or any of such entities' officers,
employees, agents, or representatives; or that place Employer, its
Enterprises and other entities, or any of such entities' or its officers,
employees, agents, or representatives in a false light before the public;
or that constitute a misappropriation of the name or likeness of Employer,
its Enterprises and other entities, or any of such entities' or its
officers, employees, agents, or representatives. A violation or threatened
violation of this prohibition may be enjoined by the courts. The rights
afforded the Mescalero Apache Tribal entities under this provision are in
addition to any and all rights and remedies otherwise afforded by law.
8.3 For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been
duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Employer:
Mescalero Apache Tribe and Xxxxxxx, Xxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx First Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Office of the Tribal President Attention: Xxxxxxx Xxxxxxx
If to Employee, to the address shown on the first page hereof.
Either Employer or Employee may furnish a change of address to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
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8.4 This Agreement shall be governed in all respects by the laws of the
Mescalero Apache Tribe, excluding any conflict-of-law rule or principle
that might refer the construction of the Agreement to the federal courts of
the United States.
8.5 No failure by either party hereto at any time to give notice of any breach
by the other party of, or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time.
8.6 If a dispute arises out of or related to this Agreement, other than a
dispute regarding Employee's obligations under Article 6, or Article 7, and
if the dispute cannot be settled through direct discussions, then Employer
and Employee agree to first endeavor to settle the dispute in an amicable
manner by mediation, before having recourse to any other proceeding or
forum.
8.7 Each of Employer and Employee is a citizen of the United States of America.
Employer's principal place of business is in Mescalero, Xxxxx County, New
Mexico. This Agreement was negotiated and signed in Mescalero, New Mexico.
This Agreement shall be performed in Mescalero, New Mexico. Any litigation
that may be brought by either Employer or Employee involving the
enforcement of this Agreement or the rights, duties, or obligations of this
Agreement, shall be brought exclusively in the Tribal court sitting in
Mescalero, Xxxxx County, New Mexico, or federal courts having jurisdiction
over the Mescalero Apache Tribe.
8.8 It is a desire and intent of the parties that the terms, provisions,
covenants, and remedies contained in this Agreement shall be enforceable to
the fullest extent permitted by law. If any such term, provision, covenant,
or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed
to be invalid or unenforceable in whole or in part, then such term,
provision, covenant, or remedy shall be construed in a manner so as to
permit its enforceability under the applicable law to the fullest extent
permitted by law. In any case, the remaining provisions of this Agreement
or the application thereof to any person, association, or entity or
circumstances other than those to which they have been held invalid or
unenforceable, shall remain in full force and effect.
8.9 This Agreement shall be binding upon and inure to the benefit of Employer
and any other person, association, or entity which may hereafter acquire or
succeed to all or substantially all of the business or assets of Employer
by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under
Agreement hereof are personal and such rights, benefits, and obligations of
Employee shall not be voluntarily or involuntarily assigned, alienated, or
transferred, whether by operation of law or otherwise, without the prior
written consent of Employer.
8.10 There may exist other agreements between Employer and Employee relating to
the employment relationship between them, e.g., the agreement with respect
to company policies contained in Employer's Policy booklet and agreements
with respect to benefit plans and health insurance. This Agreement replaces
and merges previous agreements and discussions pertaining to the following
subject matters covered herein: the nature of Employee's employment
relationship with Employer and the term and termination of such
relationship. This Agreement
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constitutes the entire agreement of the parties with regard to such subject
matters, and contains all of the covenants, promises, representations,
warranties, and agreements between the parties with respect such subject
matters. Each party to this Agreement acknowledges that no representation,
inducement, promise, or agreement, oral or written, has been made by either
party with respect to such subject matters, which is not embodied herein,
and that no agreement, statement, or promise relating to the employment of
Employee by Employer that is not contained in this Agreement shall be valid
or binding. Any modification of this Agreement will be effective only if it
is in writing and signed by each party whose rights hereunder are affected
thereby, provided that any such modification must be authorized or approved
by Employer's President.
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
in multiple originals to be effective on the date first stated above.
MESCALERO APACHE TRIBE XXXXX X. XXXXXXX
-------------------------------- -----------------------------
By: Xxxx Misque, President By: Xxxxx X. Xxxxxxx
This ____ day of December 2002
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EXHIBIT "A"
EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN THE
MESCALERO APACHE TRIBE
AND XXXXX X. XXXXXXX
EMPLOYEE NAME: Xxxxx X. Xxxxxxx
TERM: Effective December 12, 2002 through April 30,2008
POSITION: Director of Marketing
LOCATION: Mescalero, New Mexico
REPORTING RELATIONSHIP: As designated by Tribal President
MONTHLY BASE SALARY: Fourteen thousand five hundred eighty three and 34/100
Dollars ($14,583.34)
BONUS: An incentive salary equal to one-quarter of one percent
(.25%) of the adjusted net profits (hereinafter defined)
of the Employer's Resort operations, herein defined as
the Inn of the Mountain Gods Resort and Casino, Casino
Apache Travel Center and Ski Apache Enterprises,
beginning with the Employer's year end for Fiscal year
2003 and each fiscal year thereafter during the term of
this Agreement. "Adjusted net profit" shall be the net
income of the Employer's Resort operations prior to any
distributions to the Mescalero Apache Tribe or any
Enterprise or other entity of the Mescalero Apache Tribe;
after any reserve or payment of any revenue sharing,
regulatory fees or other reserve or payments to the State
of New Mexico; and after any reserve for capital
improvements, determined in accordance with generally
accepted accounting practices by the Employer's
independent accounting firm and adjusted to exclude:
(i) any incentive salary payments
paid pursuant to this Agreement;
(ii) any extraordinary gains or
losses (including, but not limited to,
gains or losses on disposition of assets);
(iii) any refund or deficiency of
any regulatory or related fees paid in a
prior year; and
(iv) any provision for regulatory
or related fees
EXHIBIT "A'
made in prior years which
is subsequently determined to be
unnecessary.
The determination of the adjusted
net profits made by the independent
accounting firm employed by the Employer
shall be final and binding upon Employee
and Employer.
The incentive salary payment shall
be made within thirty (30) days after the
Employer's independent accounting firm has
concluded its audit. If the final audit is
not prepared within ninety (90) days after
the end of the fiscal year, then Employer
shall make a preliminary payment equal to
fifty percent (50%) of the amount due
based upon the adjusted net profits
preliminarily determined by the
independent accounting firm, subject to
payment of the balance, if any, promptly
following completion of the audit by the
Employer's independent accounting firm.
The maximum incentive salary payable for
any one year shall not exceed fifty
percent (50%) of the then applicable base
salary of Employee.
Employer and Employee agree to negotiate
Employee's bonus opportunity for each
subsequent fiscal year no later than
September 1st of each applicable fiscal
year.
HOUSING ALLOWANCE: Employer will provide to Employee a monthly housing
allowance of two thousand and 00/100 dollars ($2,000) per
month.
EMPLOYEE BENEFITS: Employee, spouse and eligible dependents will be eligible
for immediate coverage or medical, dental and vision
benefits to the extent permitted by the Plan Document.
------------------------------ --------------------------------------
By: Xxxx Xxxxxxx, President By: Xxxxx X. Xxxxxx
This day of December 2002
