Exhibit 10.23
MOHEGAN SUN EXECUTIVE EMPLOYMENT AGREEMENT
This is an employment agreement which we will hereinafter refer to simply
as the "Agreement," which I, Xxxxxx Xxxxx, of Colchester, Ct. voluntarily enter
into on behalf of myself and my heirs, executors, administrators and assigns
with my employer, MOHEGAN TRIBAL GAMING AUTHORITY, acting on behalf of its
affiliates, successors, or assigns (the "MTGA") through its President/Chief
Executive Officer (President/CEO") on this the 4th day of October 2001.
WHEREAS, the MTGA is an instrumentality of the Mohegan Tribe of Indians of
Connecticut, a federally recognized Indian tribe, doing business as Mohegan Sun,
a Class III gaming casino located on the Mohegan Reservation and operated under
the authority of the National Indian Gaming Commission and the Indian Gaming
Regulatory Act and pursuant to a Compact with the State of Connecticut; and
WHEREAS, as an instrumentality of the Mohegan Tribe of Indians of
Connecticut, the MTGA is a sovereign Indian tribal entity that is immune from
unconsented suit; and
WHEREAS, the MTGA is willing to waive its sovereign immunity for the
purposes and to the extent set forth herein, in consideration for my agreement
to perform my obligations and duties as an employee of the MTGA as such
obligations and duties may be established, modified, or assigned by the
President/CEO of the MTGA (or his authorized designee); and
WHEREAS, the MTGA acts with respect to its employees exclusively through
its President/CEO, in whom is vested sole legal authority to make decisions with
respect to my employment, the continuation and/or termination of my employment,
and the terms and conditions of my employment;
THE MTGA AND I THEREFORE, in consideration of my employment by the MTGA
after the date of this Agreement and the additional consideration set forth in
Paragraph 3 of this Agreement, which I acknowledge to be good an sufficient, set
forth our agreement and understanding with respect to my obligations as an
employee, as follows:
1. DEFINITIONS. As used in the Agreement:
(a) "MTGA" means the Mohegan Tribal Gaming Authority, its successors
and assigns, and any organizations or businesses controlled by it.
(b) "Conflicting Organization" means me individually and/or in
affiliation with any person, group of persons, entity or organization which is
engaged in or is about to become engaged in the design, development,
administration, operation or marketing of a gaming casino in competition with
the MTGA.
(c) "Executive Assignment" means any and all duties, assignments,
titles, roles or obligations that I am expected to perform consistent with and
in furtherance of the MTGA's business objectives.
(d) "Base Salary" means my regular salary as established by the
President/CEO and paid in regular periodic installments, subject to any
deductions required by applicable law, and does not include any bonuses or
additional compensation of any kind.
(e) "Non-Compete Area" means the States of Connecticut, Rhode Island,
Massachusetts, and New York.
2. MY COVENANTS
(a) I will not, without express prior written permission of the
President/CEO of the MTGA, during my employment by the MTGA and for a period of
twelve (12) months following there termination of that employment:
(i) directly or indirectly engage in the gaming industry within
the Non-Compete Area;
(ii) contact for the purpose of soliciting business any person or
entity who was at any time a patron of or supplier or vendor to the MTGA:
(iii) perform services of any kind for any person or entity that
was at any time a patron of or vendor or supplier to the MTGA;
(iv) contact any other employee of the MTGA for the purpose of
recruiting such other employee for employment, directly or indirectly, for
another employer.
(b) I also covenant and agree that in the event that I voluntarily
terminate my employment by resignation, I shall deliver written notice of my
intention to terminate my employment sixty (60) days in advance of my
termination date to the President/CEO. I understand and acknowledge that if I
exercise my right to terminate my employment, my
covenants not to compete remain in full force and effect for the duration and
within the Non-Compete area set forth herein.
(c) I acknowledge that my skills are transferable or applicable to
industries and entities which are not in competition with the MTGA and/or that I
may engage in the gaming industry outside the Non-Compete area, so that my
covenants against competition with the MTGA will not prevent me from providing
for myself and my family. I understand that I may make written request to the
President/CEO of the MTGA for a waiver or any of the provisions of this
Paragraph, and that the decision of the President/CEO in response to any such
request for waiver shall be final and shall not be subject to an appeal or
review in any forum.
3. CONSIDERATION
In consideration for my obligation and undertakings herein, expressly
including my covenant not to compete with the MTGA
(a) The MTGA shall, upon the final execution of this Agreement by me
and by the President/CEO, increase my Base Salary by 5 percent to $178,500.60;
(b) I understand that if I voluntarily terminate my employment by
resignation and give the written notice required by Paragraph 2(b), the MTGA
shall continue to pay my Base Salary from the date of my notice of resignation
through and including the sixtieth (60th) calendar day following my delivery of
my resignation notice, so long as I remain fully in compliance with all of my
other covenants under this Agreement.
(c) If the MTGA exercises its right to terminate my employment at its
discretion pursuant to Paragraph 4(a) and without "cause" as set forth in
Paragraph 4(b), then the MTGA shall pay me:
(i) my Base Salary in regular installments at the same Base Salary
rate as was in effect at the date of my termination for a period of one calendar
year from the date of my termination, and
(ii) a lump sum in the amount of twenty five thousand dollars
($25,000.00) for relocation expenses subject to all deductions required by
applicable law.
I hereby acknowledge that the foregoing represents good and sufficient
consideration to which I am not otherwise entitled so as to assure that this
agreement may be enforced against me in the event of my breach.
4. TERMINATION
(a) Termination At Will
I understand, acknowledge and agree that my employment is "at will," in
that either I or the MTGA, independently, can terminate my employment for any
reason or for no reason, at any time, with or without notice, subject only to
the terms and limitations of this Agreement. If I terminate my employment by
voluntary resignation and provide written notice pursuant to Paragraph 2(b), I
may, unless I am otherwise disqualified by my breach of other terms of this
Agreement, receive the benefits set forth in Paragraph 3(b). If the MTGA
terminates my employment at its discretion and without "cause" as described
more fully below, the MTGA shall pay me the benefits set forth in Paragraph
3(c).
(b) Termination for Cause
I acknowledge and agree that the MTGA may terminate this Agreement for
cause, and that in the event of a termination for cause, the MTGA shall have no
obligation to pay me any of the benefits described in Paragraph 3(c) or any
other benefit except that required by applicable law.
I understand that cause for termination includes, but is not limited to:
o My conviction of a criminal offense;
o My violation of Mohegan Sun policies, including, but not limited to,
my violation of the standards for personal conduct set forth in
Mohegan Sun Policy #27(as amended);
o My breach of my covenants under this Agreement, including my
covenants not to compete;
o My aiding, assisting, or abetting any other person to breach a
covenant not to compete;
o Suspension or revocation of my gaming license;
o My engagement, directly or indirectly, in a conflict of interest;
o My failure or refusal to perform my Executive Assignment; or
o Other serious misconduct by me.
I understand that the foregoing is illustrative of grounds for my
termination for cause, and is not an exclusive or exhaustive list.
I understand that I have a right to a rudimentary hearing prior to the
termination of my employment for cause, at which hearing I shall be afforded an
opportunity to present reasons to the President/CEO or his designee why the
termination should not be imposed. However, I
understand that any such hearing shall be subject to such limitations in time
and scope that the MTGA may impose, and that I may obtain a review of the
termination decision pursuant to the "Remedies" set forth in this Agreement.
(c) Confidentiality of MTGA Records
I agree that all records, material and information obtained by me in the
course of my employment with the MTGA shall at all times be treated and
maintained in confidence and shall remain the exclusive property of the MTGA
during and following my employment with the MTGA. I agree that I shall at all
times adhere to all policies, standards and procedures as established by the
MTGA for protecting the confidentiality of information and records, including
but not limited to trade secrets.
(d) Return of MTGA Documents Upon Termination
Upon termination of my employment with the MTGA, I will return to and leave
with the MTGA all documents, records and notebooks concerning the business of
the MTGA, including copies thereof, then in my actual or constructive
possession, whether prepared by me or by others, and I will not duplicate such
materials for my own use or the use of another person, corporation or entity at
any time, either during or following my employment.
5. REMEDIES.
(a) I recognize that if I violate the covenants and undertakings of this
Agreement I may cause the MTGA irreparable injury and damage. Therefore, the
MTGA and I agree that, if I violate this Agreement, the MTGA may seek to enjoin
my actions which are in breach of this Agreement and that the MTGA is entitled
to recover from me all of its reasonable costs and expenses, including
reasonable attorney's fees, incurred by or on behalf of the MTGA in the
enforcement of this Agreement or any part thereof and in its investigation of my
violation of this Agreement, as well as any damages that may be proven to the
satisfaction of a court of competent jurisdiction.
(b) I understand that the MTGA may disclose this Agreement to any entity
with whom I may become affiliated or employed following the termination of my
employment with and by the MTGA.
(c) I understand that the Mohegan Tribe of Indians of Connecticut and the
MTGA have established the Mohegan Gaming Disputes Court on the Mohegan
Reservation. I consent to the exercise of personal jurisdiction over me by the
Mohegan Gaming Disputes Court.
By: /s/ Xxxxxxx Xxxxxxx 2-14-02
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Xxxxxxx Xxxxxxx, President/CEO Date
/s/ Xxxxxx Xxxxx 2-15-02
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Employee Date
Xxxxxx Xxxxx
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(Printed Name)
