EXHIBIT 10.48
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this
17th day of March, 1997 between CASINO AMERICA, INC., a Delaware corporation
(the "Company") and XXXXX X. XXXX ("Employee").
In consideration of the mutual promises of this Agreement, the Company and
Employee agree as follows:
1. Effective Date: This agreement shall be effective as of March 17th,
1997.
2. Employment:
(a) Term. The Company hereby employs Employee, and Employee accepts
such employment and agrees to perform services for the Company and/or its
Subsidiaries, for an initial period of three (3) years from and after the
Effective Date of this Agreement (the "Initial Term") and, unless either party
gives written notice to the other party at least one (1) year before the end of
the Initial Term or of any Renewal Term, for successive one-year periods (the
"Renewal Terms"), unless terminated at an earlier date in accordance with
Section 5 of this Agreement (the Initial Term and the Renewal Terms together
referred to as the "Term of Employment"). Employee agrees to work out of Casino
America's corporate offices, currently located in Biloxi, Mississippi.
(b) Service with Company. During the Term of Employment, Employee agrees
to perform reasonable employment duties as the Board of Directors of the Company
and/or its Subsidiaries shall assign to him from time to time. Employee also
agrees to serve, for any period for which he is elected as an officer of the
Company and/or its Subsidiaries; provided, however, that Employee shall not be
entitled to any additional compensation for serving as an officer of the Company
and/or its Subsidiaries. Employee's initial position shall be to serve as Vice
President of Marketing.
(c) Performance of Duties. Employee agrees to serve the Company and/or
its Subsidiaries faithfully and to the best of his ability and to devote
substantially all of his time, attention and efforts to the business and affairs
of the Company and/or its Subsidiaries during the Term of Employment.
(d) Compensation. During the Term of Employment, the Company and/or its
Subsidiaries shall pay to Employee as compensation for services to be rendered
hereunder an aggregate base salary of $160,000 per year, payable in equal
monthly, or more frequent payments, subject to increases, if any, as may be
determined by the Company's Board of Directors. In addition, Employee will be
eligible to receive an annual bonus beginning on or about May 1997 based upon
his job performance and the performance of the Company, which bonus shall not be
less than $5,000 for the fiscal 1997 year, and not less than $40,000 for the
fiscal years 1998, 1999, and pro-rated for 2000. Employee shall also be
eligible to participate in any stock option plans of the Company and/or its
Subsidiaries. Employee shall initially receive options to purchase a total of
30,000 shares of the Common Stock of the Company at the fair market price at
date of issue. The options will be vested at the rate of 6,000 shares per
year. /1/ Employee shall be
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/1/ In the event of a change in management, take-over or buyout, all shares
shall be fully vested.
eligible to participate in such employee benefit plans or programs of the
Company and/or its Subsidiaries as are or may be made generally available to
employees of the Company or of its Subsidiaries. The Company and/or its
Subsidiaries will pay or reimburse Employee for all reasonable and necessary
out-of-pocket expense incurred by him in moving to Biloxi and in the performance
of his duties under this Agreement, and in accordance with Company policy.
Employee will be entitled to three (3) weeks paid vacation.
3. Confidentiality and Non-Competition.
(a) Ownership. Employee agrees that all inventions, copyrightable
material, business and/or technical information and trade secrets which arise
out of the performance of his Agreement are the property of the Company and/or
its Subsidiaries.
(b) Non-Competition. Employee agrees to the following covenant not to
compete beginning on the effective date of this Agreement and continuing until
one year after termination of his employment relationship with the Company:
Employee agrees not to compete, directly or indirectly (including as
an officer, director, partner, employee, consultant, independent
contractor, or more than 5% equity holder of any entity) with the
Company or any of its Subsidiaries in any way concerning the
ownership, development or management of any gaming operation or
facility within a 75-mile radius of any gaming operation or facility
with respect to which the Company or any of its Subsidiaries owns,
renders or proposes to render consulting or management services. If
this company develops a casino in Elkton, Maryland, Atlantic City
would be considered to be outside the 75 mile radius.
(c) Confidentiality. Except as is consistent with Employee's duties and
responsibilities within the scope of his employment with the Company and/or the
Subsidiaries, Employee agrees not to use or disclose to any unauthorized person
information which is not generally known and which is proprietary to the Company
or any Subsidiary, including all information that the Company or any Subsidiary
treats as confidential, ("Confidential Information"). Upon termination of
Employee's employment, Employee will promptly turn over to the Company all
software, records, manuals, books, forms, documents, notes, letters, memoranda,
reports, data, tables, compositions, articles, devices, apparatus and other
items that disclose, describe or embody Confidential Information including all
copies of the Confidential Information in his possession, regardless of who
prepared them.
4. Remedies. Employee understands that if he fails to fulfill his
obligations under this Agreement, the damages to the Company and/or its
Subsidiaries would be very difficult to determine. Therefore, in addition to
any other rights or remedies available to the Company at law, in equity, or by
statute, Employee hereby consents to the specific enforcement of this Agreement
by the Company through an injunction or restraining order issued by the
appropriate court.
5. Termination.
(a) Grounds for Termination. The Term of Employment set forth in Section
2(a) shall terminate prior to its expiration in the event that at any time
during such term:
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(i) Employee shall die or become disabled as determined in good faith
by the Board of Directors of the Company; or
(ii) The Board of Directors of the Company delivers notice of
termination for "cause" to Employee. For purposes of this
section, "cause" shall mean: (1) Employee's inability to become
qualified by any gaming authority; (2) any dishonesty, disloyalty
or gross misconduct on the part of Employee in the performance of
Employee's duties hereunder; (3) any breach of Company and/or the
Subsidiaries policies or failure on the part of Employee to
perform duties assigned to Employee by the Company's Board of
Directors, which breach or failure is not remedied by Employee
within 30 days after notice thereof is given by the Company to
Employee; or (4) any event or circumstance regarding Employee
which may, in the judgment of the Board of Directors of the
Company, result in (i) the disapproval, modification, or non-
renewal of any contract under which the Company or any Subsidiary
has sole or shared authority to own, develop, manage or consult
with any gaming operations; or (ii) the loss of non-reinstatement
of any license or franchise from any governmental agency held by
the Company or any Subsidiary to conduct any portion of the
business of the Company or any Subsidiary, which license or
franchise is conditioned upon employees or officers of the
Company meeting certain criteria.
(b) Severance. The Company may terminate the Term of Employment at
any time for any reason. If the Company terminates the Term of Employment (by
either terminating Employee's employment or by giving the notice described in
Section 2(a) to prevent a Renewal Term) without "cause", then, provided that the
Employee signs a General Release in a form acceptable to the Company that
releases the Company and its affiliated entities from any and all claims that
Employee may have against them, Employee shall be entitled to continue to
receive his salary and employee benefits for twelve months.
6. Miscellaneous.
(a) Successors and Assigns. This Agreement is binding on and inures
to the benefit of the Company's successors and assigns. The Company may assign
this Agreement in connection with a merger, consolidation, assignment, sale or
other disposition of substantially all of its assets or business. This Agreement
may not be assigned by Employee.
(b) Modifications, Waivers. This Agreement may be modified or amended
only by a writing signed by the Company, and Employee. The Company's failure, or
delay in exercising any right, or partial exercise of any right, will not waive
any provision of this Agreement or preclude the Company from otherwise or
further exercising any rights or remedies hereunder, or any other rights or
remedies granted by any law or any related document.
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(c) Governing Law and Jurisdiction. The laws of Delaware will govern the
validity, construction, and performance of this Agreement. Any legal proceeding
related to this Agreement will be brought in a Delaware court. Both the Company
and Employee hereby consent to the exclusive jurisdiction of that court of this
purpose.
(d) Captions. The headings in this Agreement are for convenience only and
do not affect the interpretation of this Agreement.
(e) Severability. To the extent any provision of this Agreement shall be
invalid or enforceable with respect to Employee, it shall be considered deleted
herefrom with respect to Employee and the remainder of such provision and this
Agreement shall be unaffected and shall continue in full force and effect. In
furtherance to and not in limitation of the foregoing, should the duration or
geographical extent of, or business activities covered by, any provision of this
Agreement be in excess of that which is valid and enforceable under applicable
law with respect to Employee, then such provision shall be construed to cover
only that duration, extent or activities which are validly and enforceably
covered with respect to Employee. Employee acknowledges the uncertainty of the
law in this respect and expressly stipulates that this Agreement be given the
construction which renders its provisions valid and enforceable to the maximum
extent (not exceeding its expressed terms) possible under applicable laws.
(f) Entire Agreement. This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writings and understandings
between the parties concerning the matters herein or therein, including without
limitation, any policy or personnel manuals of the Company.
(g) Notices. All notices and other communications required or permitted
under this Agreement shall be in writing and sent by registered first-class
mail, postage prepaid, and shall be deemed delivered upon hand delivery or upon
mailing (postage prepaid and by registered or certified mail) to the following
address:
If to the Company, to:
Casino America, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
If to the Employee, to:
Xxxxx X. Xxxx
0000-X Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
These addresses may be changed at any time by like notice.
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed in
a manner appropriate for such party as of the date first above written.
CASINO AMERICA, INC.
By: /s/ XXXX X. XXXXXXXX
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XXXX X. XXXXXXXX
"EMPLOYEE"
/s/ XXXXX X. XXXX
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XXXXX X. XXXX
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