Exhibit 10.73
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DATED: October 1, 1998
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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
30th day of September, 1998, by and among Santa Fe Gaming Corporation, a
Nevada corporation and its affiliates ("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 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
Xxxxxxx Xxxx Xxxxxx, 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;
WHEREAS, Employer and Employee have previously entered into Employment
Agreements dated February 28, 1994, October 1, 1996 and October 1, 1997.
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
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
assigned by Employer;
(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'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 one hundred
eighty (180) 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 one
hundred eightieth (180th) 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 would
diminish Employee's responsibility, authority, general status or comparative
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
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. Employee may
terminate this Agreement or not renew this Agreement with, at least, 30 days
written notice. 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 and, in the case of Section 7(a), will be equal to
one-half the annual Base Salary, in effect.
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;
however, that upon approval of such an even 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 and in the case of Section 7(a)
will be equal to one-half the annual Base Salary, in effect;
(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 Employer to Employee of the termination
of this Agreement without Cause; provided, however, that such notice must
be accompanied by Employer's tender to Employee of the lump sum of payments
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
due to Employee pursuant to Section 7 and in the case of Section 7(a) will
be equal to one-half the annual Base Salary, in effect;
(e) the giving of written notice by Employee to Employer upon a material
breach of this Agreement by Employer including a change in the Employee's
responsibilities and/or position, provided however, Employer shall have a
period of seven (7) days after giving of such notice to cure the breach or
default; if the default is not cured within such period, the Employee will
be entitled to the lump sum of payments due to Employee for services
rendered pursuant to Section 7 and in the case of Section 7(a) will be
equal to one-half the annual Base Salary, in effect;
(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 Santa Fe Gaming execute an agreement to effect such an event
that the Employer tender to Employee the lump sum of payments due to
Employee for services rendered pursuant to Section 7 and in the case of
Section 7(a) will be equal to one-half the annual Base Salary, in effect;
(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 occurrence, that
Employer tender to Employee the lump sum of payments due to Employee for
services rendered pursuant to Sections 7 and in the case of Section 7(a)
will be equal to one-half of the annual base salary in effect;
(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 approval by the Board of
Directors to proceed toward filing of a bankruptcy petition that Employer
tender to Employee the lump sum of payments due to Employee for services
rendered pursuant to Section 7 and in the case of Section 7(a) will be
equal to one-half the annual Base Salary, in effect.
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
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
of ONE HUNDRED EIGHTY-FIVE THOUSAND DOLLARS ($185,000.00), for the
twelve month period beginning October 1, 1998, 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 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.
(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 approved 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
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
all insurance, maintenance, and repair expenses incident to such
automobile.
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
borne 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 11 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.
12. SUCCESSION. This Agreement shall be binding upon and inure to the
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
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
XXXXX XXXXXX
000 Xxxx Xxxxxxx Xxxxxx
XX Xxx 000
Xxxx, XX 00000-0000
TO EMPLOYEE: Xxxxxx X. Land
0000 Xxxxxxx Xxxx Xxxxxx
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 17.
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.
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
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 10 and 11 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 21, 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.
22. 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, 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.
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
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/
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Xxxx X. Xxxxxx
President
EMPLOYEE
/s/
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Xxxxxx X. Land
Senior Vice President and
Chief Financial Officer
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Employment Agreement by and between Santa Fe Gaming Corp. and Xxxxxx X. Land
