EXHIBIT 10.49
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 7th
day of April, 1997 between Casino America, Inc., a Delaware corporation (the
"Company") and Xxxxxxx Xxxxxxx ("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 April 7,
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").
(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 Senior Vice President of Operations.
(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 $200,000 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 December 1997 based upon his job
performance and the performance of the Company. Employee shall also
be eligible to participate in any stock option plans of the Company
and/or its
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Subsidiaries. In connection with Employee's employment by a subsidiary
of the Company, Employee has previously been granted options to
purchase shares of the Common Stock of the Company. Employee shall
keep these options and they will continue to vest as provided in the
Option Agreements pursuant to which they were issued. In addition,
upon execution of this Agreement, Employee shall be granted options to
purchase 10,000 shares of the Company's stock which shall vest at a
rate of 20% per year beginning one year from the date of this
Agreement. In the event of a change in management, take-over or buy-
out, all shares shall be fully vested. Employee shall be 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, by means of
a $500 a month car allowance and subject to the presentment of
appropriate vouchers 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.
(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
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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:
(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.
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(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.
(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
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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:
Xxxxxxx Xxxxxxx
These addresses may be changed at any time by like notice.
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.
/s/ XXXX X. XXXXXXXX
By:_______________________________________
Xxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXXXX
_________________________________________
Xxxxxxx Xxxxxxx
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