Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A," is entered into between the Inn. of the Mountain Gods Resort and Casino, a
Mescalero Apache Tribal enterprise, having offices at 000 Xxxxxxx Xxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 ("Employer"), and Xxxxx X. Xxxxxxx, an individual
currently residing at 125 Mira Monte Road, X.X. Xxx 0000, Xxxx, Xxx Xxxxxx 00000
("Employee"), to be effective as of September 12,2005 (the "Effective Date").
WITNESSETH
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 I: 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 mil 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's 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
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 mat 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 entitles, 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 Chairperson or the Chief
Operating Officer should such duty be so delegated, same herein referred to
as "Chairperson" any facts that might involve such a conflict of interest
that has not been approved by Employer's Chairperson. 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 Chairperson or the
Chief Operating Officer should such duty be so delegated, 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
ARTICLE II: 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 sob 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. Where time allows, any
such request for expenditure shall be approved in advance by the Chief
Operating Officer. 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 arc similarly applicable to covered Employees generally. Moreover,
unless specifically provided for in a written plan document adopted by the
Management Board of the Inn of the Mountain Gods Resort and Casino, none of
the benefits or arrangements described in this Article 2 shall be secured
or funded is 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 83 may be required
pursuant to any law or governmental regulation or ruling.
ARTICLE III: TERMINATION PRIOR TO EXPIRATION OF TERM AW) 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
tune prior to die expiration of the Term for any of the following reasons:
(i) For "cause" upon me determination by the Employer's Chairperson 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 grass negligence or willful misconduct in the performance
of the duties and services requited 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 Gaining License. It is expressly acknowledged and agreed
mat the decision as to whether "cause" exists for termination of the
employment relationship by Employer is delegated to the Employer's
Chairperson for determination. If Employee disagrees with the decision
reached by Employer's Chairperson, the dispute will be limited to
whether Employer's Chairperson reached the decision in good faith;
(ii) for any other reason whatsoever, with or without cause, in the sole
discretion of the Chairperson 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 (i); 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:
(i) a material breach by Employer of any material provision of this
Agreement which remains uncorrected 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 32 (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 she 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
tin's 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 rate salary through the date of such termination, but
Employee's heirs, administrators, or legatees shall not 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 rate 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 docs 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 IV: 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 an at will
employment for a month to month period with same terminable at anytime by
either Employee or Employer 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 V: 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 Gaining 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 contenders or
admits civil or criminal 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 VI: 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 alter his
employment by Employer, make any unauthorized disclosure of any
confidential business information or trade secrets of Employer, its
subsidiaries 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 ventures, and
the like, of Employer, its subsidiaries 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 secrete 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 employment; or, if the work is not
prepared by Employee within the scope of his 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 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.
ARTICLE VII: 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 protect Employer's interests in the confidential information of
Employer and the business relationships developed by Employee with the
clients and potential clients of Employer, and as an additional incentive
for Employer to enter into this Agreement, Employer and Employee agree to
the non-competition provisions of this Article 7. Employee agrees that
during the period of Employee's non-competition obligations hereunder,
Employee will not, directly or indirectly work for Employee or for others,
in Xxxxx County, Lincoln County, Xxxxxx County and Xxxx Xxx County, New
Mexico:
(i) engage in any business competitive with the business conducted by
Employer,
(ii) render advice or services to, or otherwise assist, any other person,
association, or entity who is engaged, directly or indirectly, in any
business competitive with the business conducted by Employer,
(iii) induce any Employee of Employer, its Enterprises and other entities
to terminate his or her employment with Employer, its Enterprises and
other entities, or hire or assist in the hiring of any such Employee
by person, association, or entity not affiliated with Employer.
these non-competition obligations shall extend during the term of this
agreement and for twelve (12) months after termination or expiration
whichever should occur last,
7.2. Employee understands that the foregoing restrictions may limit his ability
to engage in certain businesses during the period provided for above, but
acknowledges that Employee will receive sufficiently high remuneration and
other benefits (e.g., the right to receive compensation under Section 3.5
upon Involuntary Termination) under this Agreement to justify such
restriction. Employee acknowledges that money damages would not be
sufficient remedy for any breach of this Article 7 by Employee, and
Employer shall be entitled to enforce the provisions of this Article 7 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 7, but shall be in addition to all
remedies available at law or in equity to Employer, including, without
limitation, the recovery of damages from Employee and his or her agents
involved in such breach.
7.3. It is expressly understood and agreed that Employer and Employee consider
the restrictions contained in this Article 7 to be reasonable and necessary
to protect the proprietary information of Employer. Nevertheless, if any of
the aforesaid restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to
be modified by such courts so as to be reasonable and enforceable and, as
so modified by the court, to be fully enforced.
ARTICLE VIII: MISCELLANEOUS:
8.1. For purposes of this Agreement the term "Employer" shall include (he Inn of
the Mountain Gods Resort and Casino, Ski Apache, Casino Apache Travel
Center and any other Enterprise or entity of the Inn of the Mountain Gods
Resort and Casino.
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 Employer under this provision arc 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:
Chairperson F, Xxxxxxxx Xxxxxxxxx, Esq.
Inn of the Mountain Gods Resort and Casino Xxxxxxxxx and Xxxxxx
and 000 Xxxxxxx Xxxxxx Xxxx 000 Xxxxxxxx Xxx.
Xxxxxxxxx, Xxx Xxxxxx 00000 Xxxxxxxxxx, Xxx Xxxxxx 00000
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.
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 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 ate affected thereby, provided that any
such modification must be authorized or approved by Employer's Chairperson.
8.11. The parties acknowledge that Employee was previously employed as the
marketing director for Employer. Such contract is specifically terminated.
Any bonus rights accrued under the prior contract shall be paid through the
effective date of this Agreement.
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
in multiple originals to be effective on the date first stated above.
INN OF THE MOUNTAIN GODS
RESORT AND CASINO XXXXX X. XXXXXXX
/s/ Xxxx X. Chino /s/ Xxxxx X. Xxxxxxx
------------------------------------ ------------------------------
By: Xxxx X. Chino, Chairperson By: Xxxxx X. Xxxxxxx
This 27th day of October, 2005
EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN THE
INN OF THE MOUNTAIN GODS RESORT AND CASINO
AND XXXXX X. XXXXXXX
EMPLOYEE NAME: Xxxxx X. Xxxxxxx
TERM: Effective September 12, 2005 through September 11, 2008.
POSITION: Chief Operating Officer
LOCATION: Mescalero, New Mexico
REPORTING RELATIONSHIP: TO Chairperson of the Inn of the Mountain Gods Resort and
Casino Management Board, or any party so designated by the
Chairperson.
MONTHLY BASE SALARY: TWENTY THOUSAND EIGHT HUNDRED AND THIRTY THREE and 34/100
Dollars ($20,833.34)
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 Sid 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 (he 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 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 preliminary 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 of each applicable fiscal year.
EMPLOYEE BENEFITS: Employee, spouse and eligible dependents will be
eligible for immediate coverage for medical, dental and
vision benefits to the extent permitted by the Plan Document
/s/ Xxxx X. Chino /s/ Xxxxx X. Xxxxxxx
------------------------------------ ---------------------------------------
By: Xxxx X. Chino, Chairperson By: Xxxxx X. Xxxxxxx