EXHIBIT 10.38
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Dated: February 5, 2002
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
- by and between -
HOLLYWOOD CASINO CORPORATION
- and -
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
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made and entered into as of February 5, 2002, to be effective as of January 1,
2002 (the "Effective Date"), by and between Hollywood Casino Corporation, a
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Delaware corporation (together with its successors and assigns permitted
hereunder, "Employer"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Employee").
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WHEREAS, Employer is a corporation, duly organized and existing under
the laws of the State of Delaware, which develops and/or operates riverboat and
dockside casinos and related support facilities in emerging and established
gaming jurisdictions and which has a need for qualified, experienced personnel;
WHEREAS, Employee is an adult individual currently residing at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
WHEREAS, Employee is currently employed by Employer pursuant to an
Employment Agreement, dated as of May 5, 2000, by and between Employer and
Employee (the "Prior Employment Agreement");
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WHEREAS, Employer desires to continue to employ Employee in an
executive capacity with Employer, and Employee desires to continue to be
employed by Employer in said capacity under the terms and pursuant to the
conditions set forth herein;
WHEREAS, the parties hereto deem it desirable and in the best
interests of Employer and its stockholders for Employer to continue to employ
Employee on the terms and conditions set forth herein; and
WHEREAS, this Agreement amends, restates and supercedes the Prior
Employment Agreement in its entirety.
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:
1. DEFINITIONS. As used in this Agreement, the words and terms hereinafter
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defined have the respective meanings ascribed to them herein, unless a different
meaning clearly appears from the context:
(a) "Affiliate" - means, with respect to any Person, any other Person
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directly or indirectly controlling, controlled by or under common control
with such first Person and includes, without limitation, such first
Person's Subsidiaries. For purposes of the immediately preceding sentence,
the term "control" (including, with correlative meanings, the terms
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"controlling", "controlled by" and "under common control with"), as used
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with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting
securities, by contract or otherwise.
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(b) "Cause" - means (i) the conviction of Employee of a felony by a
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court of competent jurisdiction or (ii) the indictment of Employee by a
state or federal grand jury of competent jurisdiction for (a) embezzlement
or misappropriation of Employer's funds or (b) any act of dishonesty or
lack of fidelity by Employee towards Employer.
(c) "Change of Control" - means (other than a Special Change of
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Control) the occurrence of one or more of the following events: (i) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of Employer
to any Person or Group; (ii) the election of two (2) or more persons to the
Board of Directors of Employer that do not constitute Continuing Directors;
(iii) the death, removal or resignation of two (2) or more Continuing
Directors during any twelve (12) month period; or (iv) the ownership or
acquisition by any Person or Group of the power, directly or indirectly, to
vote or direct the voting of securities having more than 40% of the
ordinary voting power for the election of Directors of Employer.
(d) "Change of Employment" - means the occurrence of any of the
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following: (i) assignment to Employee of any duties inconsistent in any
material respect with Employee's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities;
(ii) any reduction in Employee's compensation; (iii) any termination or
reduction of Employee's benefits excluding, for purposes of this clause
(iii) any termination or reduction in benefits that occurs as a result of a
change in employee benefits of Employer generally; (iv) relocation of
Employee's position to a geographic region outside of the greater
metropolitan area of Dallas, Texas; and (v) any material breach of this
Agreement by Employer which is not cured by Employer within fifteen (15)
days after receipt of written notice of such breach given by Employee.
(e) "Complete Disability" - means the inability of Employee, due to
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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 three hundred sixty (360)
consecutive calendar days, such "Complete Disability" to become effective
upon the expiration of such one hundred eightieth (180th) day.
(f) "Confidential Information" - means any information in any form,
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regardless of the medium or media by which such information is recorded or
communicated, that is in the possession of Employee being neither in the
public domain nor routinely available to third parties, and if directly or
indirectly disclosed to Employer's competitors would (i) assist such
competitors in competing against Employer, (ii) diminish or eliminate any
competitive advantage now enjoyed by Employer, (iii) cause financial injury
or loss to Employer or (iv) reveal proprietary information or trade secrets
of Employer.
(g) "Continuing Director" - means, as of the date of determination,
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any Person who either (i) was a member of the Board of Directors of
Employer as of the date of this Agreement or (ii) was nominated for
election or elected to the Board of Directors
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of Employer with the affirmative vote of a majority of the Continuing
Directors who were members of the Board of Directors of Employer as of the
date of this Agreement.
(h) "Group" - means any group of related Persons for purposes of
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Section 13(d) of the Securities and Exchange Act of 1934, as amended.
(i) "Person" - means any individual, partnership, joint venture,
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trust, corporation, limited liability entity, unincorporated organization
or other entity (including a governmental entity).
(j) "Special Change of Control" - means (i) any sale, lease, exchange
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or other transfer (in one transaction or a series of related transactions)
of all or substantially all of the assets of Employer to any Person or
Group or (ii) the acquisition of the power, directly or indirectly, to vote
or direct the voting of securities having more than 50% of the ordinary
voting power for the election of Directors of Employer, in each case, by a
Person or Group which prior to such event was not an Affiliate of Employer
and, in the case of a Group, of which no member thereof was an Affiliate of
Employer prior to such event, and which, in each case, has been expressly
approved by a majority of the Continuing Directors on or prior to December
31, 2002.
(k) "Subsidiary" - means, in respect of any Person, any corporation,
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association, partnership or other business entity of which more than 50% of
the total voting power of shares capital stock or other interests
(including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by (i) such Person, (ii) such Person and one or more
Subsidiaries of such Person or (iii) one or more Subsidiaries of such
Person.
(l) "Threatened Change of Control" - means the occurrence of one or
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more of the following events: (i) Employer (or any Affiliate of Employer)
entering into an agreement, the consummation of which would result in the
occurrence of a Change of Control or a Special Change of Control; (ii) any
Person (including, without limitation, Employer) publicly announcing an
intention to take or to consider taking actions which, if consummated,
would constitute a Change of Control or a Special Change of Control; (iii)
any Person or Group becoming the beneficial owner, directly or indirectly,
of securities of Employer representing forty percent (40%) or more of the
combined voting power of Employer's then outstanding securities then
entitled to vote for the election of directors; or (iv) the Board of
Directors of Employer notifying Employee in writing that a threat of a
Change of Control or a Special Change of Control exists.
2. PRIOR EMPLOYMENT. This Agreement supersedes and replaces any and all
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prior employment agreements, whether written or oral, by and between Employee,
on the one hand, and Employer or Employer's Affiliates, on the other hand,
including, without limitation, the Prior Employment Agreement. From and after
the Effective Date, Employee shall continue to be an employee of Employer under
the terms and pursuant to the conditions set forth in this Agreement.
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3. BASIC EMPLOYMENT AGREEMENT. Subject to the terms and pursuant to the
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conditions hereinafter set forth, Employer hereby continues to employ Employee
during the Term to serve in a managerial or executive capacity, under a title
and with such duties not inconsistent with those set forth in Section 4 of this
Agreement.
4. DUTIES OF EMPLOYEE. Employee shall perform such duties assigned to
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Employee by Employer as are generally associated with the duties of Executive
Vice President, General Counsel and Secretary of Employer, including but not
limited to (i) the selection and delegation of duties and responsibilities of
subordinates and (ii) the direction, review and oversight of all operations and
programs under Employee's supervision; and such other and further duties
specifically related to such duties as may be assigned to Employee by Employer.
In the performance of his duties hereunder, Employee shall report directly to
the Chief Executive Officer.
5. ACCEPTANCE OF EMPLOYMENT. Employee hereby unconditionally accepts the
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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, Employee will devote the whole of his normal and customary working
time and best efforts solely to the performance of Employee's duties under this
Agreement.
6. TERM. The term of this Agreement shall commence on the Effective Date
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and expire at 11:59 p.m. on December 31, 2004 (the "Term") unless sooner
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terminated as provided herein.
7. SPECIAL TERMINATION PROVISIONS. Notwithstanding the provisions of
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Section 6 above, Employee's employment with Employer may terminate prior to the
end of the Term in accordance with the provisions set forth below.
(a) Death of Employee. Employee's employment with Employer shall
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terminate upon the death of Employee; provided, however, that any and all
of Employee's salary, benefits and other compensation (including, without
limitation, Employee's pro-rated Target Bonus (as defined in Section 8(c)))
through the date of termination of employment shall be paid to the heirs of
Employee in the event of such death; provided, further, that Employer shall
confirm in writing to Employee's heirs, Employer's further obligation to
pay to such heirs Employee's Base Salary (at the highest rate in effect
during the twelve (12) months prior to termination) and the Target Bonus
for one (1) year after the date of termination of employment.
(b) Disability of Employee. Employee's employment with Employer shall
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terminate upon Employer giving written notice to Employee of the
termination of such employment upon the occurrence of Complete Disability
of Employee; provided, however, that any and all of Employee's salary,
benefits and other compensation (including, without limitation, Employee's
pro-rated Target Bonus) through the date of termination of employment shall
be paid to Employee in the event of termination for Complete Disability.
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(c) Cause. Employee's employment with Employer shall terminate upon
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Employer giving written notice to Employee of the termination of such
employment for Cause; provided, however, that any and all salary, benefits
and other compensation (but excluding any Bonus (as defined in Section
8(c)) or Target Bonus payments) through the termination of employment shall
be paid to Employee.
(d) Without Cause. Employee's employment with Employer shall terminate
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upon Employer giving written notice to Employee of the termination of such
employment without Cause; provided, however, that any and all of Employee's
salary, benefits and other compensation (including, without limitation,
Employee's pro-rated Target Bonus) through the date of termination of
employment shall be paid to Employee in the event of termination without
Cause; provided, further, that (i) Employer shall be obligated to pay to
Employee his Base Salary (at the highest rate in effect during the twelve
(12) months prior to termination) and the Target Bonus for two (2) years
after the date of termination of employment, payable to Employee in one
lump sum payment on the date of termination, and (ii) Employee shall be
entitled, at the option of Employer, to (A) continue to receive benefits
under Section 8(d) (including, without limitation, self employment
retirement plan credit for age and years of service with Employer) for a
period of two (2) years or (B) receive a cash payment equal to the
after-tax value of such benefits. If Employee is terminated without Cause
in connection with or following a Change of Control (other than a Special
Change of Control), Section 7(f) shall control over this Section 7(d). If
Employee is terminated without Cause in connection with or following a
Special Change of Control, Section 7(g) shall control over this Section
7(d).
(e) Change of Employment. Employee's employment with Employer shall
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terminate upon Employee giving written notice to Employer of the
termination of such employment upon the occurrence of a Change of
Employment; provided, however, that any and all of Employee's salary,
benefits and other compensation (including, without limitation, Employee's
pro-rated Target Bonus) through the date of termination of employment shall
be paid to Employee in the event of termination upon the occurrence of a
Change of Employment; provided, further, that (i) Employer shall be
obligated to pay to Employee his Base Salary (at the highest rate in effect
during the twelve (12) months prior to termination) and the Target Bonus
for two (2) years after the date of termination of employment, payable to
Employee in one lump sum payment within ten (10) days of termination, and
(ii) Employee shall be entitled, at the option of Employer, to (A) continue
to receive benefits under Section 8(d) (including, without limitation, self
employment retirement plan credit for age and years of service with
Employer) for a period of two (2) years or (B) receive a cash payment equal
to the after-tax value of such benefits. If Employee terminates his
employment for a Change of Employment in connection with or following a
Change of Control (other than a Special Change of Control), Section 7(f)
shall control over this Section 7(e). If Employee terminates his employment
for a Change of Employment in connection with or following a Special Change
of Control, Section 7(g) shall control over this Section 7(e).
(f) Change of Control. If in connection with or following the
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occurrence of a Change of Control (but not a Special Change of Control,
which shall be governed by Section 7(g)), Employee's employment with
Employer shall be terminated without Cause
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by Employer or by Employee upon giving written notice to Employer of the
occurrence of a Change of Employment, (i) Employer shall be obligated to
pay to Employee (A) all of Employee's salary, benefits and other
compensation (including, without limitation, Employee's pro-rated Target
Bonus) through the date of termination of employment and (B) his Base
Salary (at the highest rate in effect during the twelve (12) months prior
to termination) and the Target Bonus for two and one-half (2 1/2) years
after the date of termination of employment, payable to Employee in one
lump sum payment (1) on the date of termination if such termination is by
Employer and (2)within ten (10) days of termination if such termination is
by Employee, and (ii) Employee shall be entitled, at the option of
Employer, to (A) continue to receive benefits under Section 8(d)
(including, without limitation, self employment retirement plan credit for
age and years of service with Employer) for a period of two and one-half (2
1/2) years or (B) receive a cash payment equal to the after-tax value of
such benefits.
(g) Special Change of Control. Upon the occurrence of a Special Change
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of Control, Employee shall (i) be entitled to one (1) year of his Base
Salary (at the highest rate in effect during the twelve (12) months prior
to termination) and the Target Bonus payable to Employee in one lump sum
payment within ten (10) days of the Special Change of Control and (ii)
continue to receive (A) his Base Salary (at the highest rate in effect
during the twelve (12) months prior to termination) and the Target Bonus
and (B) the benefits under Section 8(d) for a one (1) year period after the
date of the Special Change of Control in exchange for continued employment
with Employer (or any surviving entity) for such one (1) year period
following the Special Change of Control. If following the Special Change of
Control Employee's employment with Employer (or any surviving entity) shall
be terminated without Cause by Employer (or any surviving entity) or by
Employee upon giving written notice to Employer (or any surviving entity)
of the occurrence of a Change of Employment, (i) Employer (or any surviving
entity) shall be obligated to pay to Employee (A) all of Employee's salary,
benefits and other compensation (including, without limitation, Employee's
pro-rated Target Bonus) through the date of termination of employment and
(B) the remaining amounts owed to Employee pursuant to (ii)(A) of the first
sentence of this Section 7(g), payable to Employee in one lump sum payment
(1) on the date of termination if such termination is by Employer and (2)
within ten (10) days of termination if such termination is by Employee, and
(ii) Employee shall be entitled, at the option of Employer (or any
surviving entity), to (A) continue to receive benefits under Section 8(d)
(including, without limitation, self employment retirement plan credit for
age and years of service with Employer (or any surviving entity)) through
the second anniversary of the Special Change of Control or (B) receive a
cash payment equal to the after-tax value of such benefits.
(h) Post-Transition Termination Right. If after the occurrence of a
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Change of Control (but not a Special Change of Control) Employee's
employment is not terminated pursuant to Section 7(f), at any time during
the first six (6) months following the occurrence of such Change of
Control, Employee shall have the right to terminate his employment at any
time after the six (6) month anniversary of the Change of Control by giving
written notice to Employer of such termination; provided, however, that (i)
Employer shall be obligated to pay to Employee (A) all of Employee's
salary, benefits
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and other compensation (including, without limitation, Employee's pro-rated
Target Bonus) through the date of termination of employment and (B) his
Base Salary (at the highest rate in effect during the twelve (12) months
prior to termination) and the Target Bonus for one and one-half (1 1/2)
years after the date of termination of employment less any Base Salary and
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Bonus amounts (not attributable to a prior period) paid to Employee since
the six (6) month anniversary of the Change of Control, payable to Employee
in one lump sum payment within ten (10) days of termination, and (ii)
Employee shall be entitled, at the option of Employer, to (A) continue to
receive benefits under Section 8(d) (including, without limitation, self
employment retirement plan credit for age and years of service with
Employer) through the second anniversary of the Change of Control or (B)
receive a cash payment equal to the after-tax value of such benefits.
(i) "Rabbi Trust" Funding. To ensure prompt payment of any amounts
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that may be owed to Employee pursuant to Section 7(f), (g) or (h), Employer
agrees to fund the amounts into a "rabbi trust" (in a form, and using a
trustee and fiduciary, mutually satisfactory to Employer and Employee) upon
the occurrence of a Threatened Change of Control. Employer and Employee
agree to select such trustee and fiduciary and to negotiate the terms of
the "rabbi trust" within thirty (30) days of the date of this Agreement.
(j) Full Settlement, Mitigation. In no event shall Employee be
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obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to Employee under any of the provisions
of this Agreement and such amounts shall not be reduced whether or not
Employee obtains other employment. Nothing contained herein or the
satisfaction of any obligation hereunder by Employer shall have any affect
(including, but not limited to, constituting a waiver or satisfaction or
release) on any rights, privileges or interests of Employee pursuant to any
other agreement or contract with Employer.
8. COMPENSATION TO EMPLOYEE. For and in complete consideration for
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Employee's full and faithful performance of his 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
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Employee, and Employee hereby covenants and agrees to accept from Employer,
an annual base salary of $300,000 (the "Base Salary"), effective as of the
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Effective Date, payable in such equal regular installments in accordance
with Employer's payroll practices, as the same may be amended, modified or
changed from time to time. The Base Salary shall be exclusive of and in
addition to any other benefits which Employer, in its sole discretion, may
make available to Employee, including, but not limited to, any benefits
provided to Employee under Section 8(d).
(b) Base Salary Adjustment. The Base Salary may be adjusted at such
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time and in such manner as the Compensation Committee of the Board of
Directors of Employer may determine in accordance with the executive
compensation policy of
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Employer then in effect; provided, however, that the Base Salary shall
never be less than $300,000 per annum.
(c) Incentive Bonus. Employee shall be eligible to receive one or more
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incentive compensation bonuses (each a "Bonus") pursuant to the incentive
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bonus program of Employer. Under Employer's incentive bonus program,
Employee's Bonus shall have a target of no less than $150,000 per calendar
year (the "Target Bonus") conditioned upon the achievement of annual
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operational and financial milestones approved by the Compensation Committee
of the Board of Directors of Employer. Any such Bonus shall be payable by
Employer to Employee in accordance with the terms of the applicable
incentive bonus program, but no later than the first business day of March
of the year following the calendar year for which the Bonus is accrued,
and, where applicable, shall be prorated based upon the number of days
Employee was employed by Employer during such calendar year. Any Bonus
shall be in addition to benefits provided to Employee under Section 8(d).
(d) Employee Benefit Plans. Employer hereby covenants and agrees that
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it shall include Employee, if otherwise eligible, in any pension plans,
retirement plans, company life insurance plans, medical and/or
hospitalization plans, bonus plans, stock option plans and/or any and all
other benefit or incentive plans which may be placed in effect by Employer
during the Term of this Agreement. The existence of this Agreement shall
not prohibit or restrict Employee's entitlement to full participation in
the executive compensation, employee benefit and other plans or programs in
which members of senior management of Employer are eligible to participate.
(e) Expense Reimbursement. During the Term of this Agreement, Employer
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shall either pay directly or reimburse Employee for Employee's reasonable
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, dues and expenses of membership in
clubs, professional societies and fraternal organizations and the like.
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 permit Employer to
claim a deduction of such expenses.
(f) Licensing Expenses. Employer hereby covenants and agrees that
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Employer shall pay all 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.
(g) Vacations and Holidays. Commencing as of the Effective Date of
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this Agreement, Employee shall be entitled to (i) annual paid vacation
leave in accordance with Employer's standard policy therefor, but in no
event less than four (4) weeks per calendar year, to be taken at such times
as selected by Employee and approved by Employer, and (ii) the following
paid holidays (or, at Employer's option, an equivalent
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number of paid days off): New Year's Day, ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.'s
Birthday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day.
9. LICENSING REQUIREMENTS. Employer and Employee hereby covenant and agree
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that this Agreement may be subject to the approval of: (i) the Illinois Gaming
Board (the "IGB") pursuant to the provisions of the Illinois Riverboat Gambling
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Act, as amended (the "Illinois Gaming Act"), and the regulations promulgated
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thereunder; (ii) the Mississippi Gaming Commission (the "MGC") pursuant to the
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provisions of the Mississippi Gaming Control Act, as amended (the "Mississippi
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Gaming Act"), and the regulations promulgated thereunder; (iii) the Louisiana
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Gaming Control Board (the "LGCB") pursuant to the provisions of the Louisiana
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Riverboat Economic Development and Gaming Control Act, as amended (the
"Louisiana Gaming Act"), and the regulations promulgated thereunder; and/or (iv)
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any and all other gaming authorities with jurisdiction over Employer's casino
properties (the "Other Gaming Authorities") and any and all other gaming
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statutes applicable to Employer's casino properties (the "Other Gaming Acts")
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and the regulations promulgated thereunder. If this Agreement is required by the
Illinois Gaming Act, the Mississippi Gaming Act, the Louisiana Gaming Act and/or
the Other Gaming Acts and the regulations promulgated thereunder to be approved
by the IGB, the MGC, the LGCB and/or the Other Gaming Authorities, as
applicable, but is not so approved by any such gaming regulatory authority, this
Agreement shall immediately terminate and shall be null and void and of no
further force or effect; provided, however, should this Agreement be required to
be approved but is not so approved by the IGB, the MGC, the LGCB and/or the
Other Gaming Authorities, Employer and Employee hereby covenant and agree that,
with the exception of the provisions of Section 7 and Section 8 of this
Agreement, this Agreement shall be modified and amended so as to receive the
appropriate approval from the IGB, the MGC, the LGCB and/or the Other Gaming
Authorities.
Employer and Employee hereby covenant and agree that, in order for Employee
to discharge the duties required under this Agreement, Employee shall hold any
necessary and appropriate casino key employee license (the "License") required
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under the Illinois Gaming Act, the Mississippi Gaming Act, the Louisiana Gaming
Act and any Other Gaming Acts. In the event that any applicable gaming
regulatory authority (the "Authority") objects to the renewal of Employee's
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License or refuses to renew Employee's License, Employer, at Employer's sole
cost and expense, shall promptly defend such action and shall take such
reasonable steps as may be required to either remove the Authority's objections
or secure the Authority's approval. Notwithstanding the foregoing, if the source
of the Authority's objections or the Authority's refusal to renew Employee's
License arise as a result of either of the events described in Section 1(b) of
this Agreement, Employer's obligations under this Section 9 shall not be
operative and Employee shall promptly reimburse Employer upon demand for any
expenses incurred by Employer pursuant to this Section 9.
10. CONFIDENTIALITY. Employee hereby warrants, covenants and agrees that,
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without the prior express written approval of Employer, Employee shall hold in
the strictest confidence and shall not disclose to any person, firm, corporation
or other entity, any and all Confidential Information of Employer, including,
but not limited to: (a) information, letters, photographs, graphs, samples, or
computer software of a confidential nature; (b) information or other documents
concerning Employer's business, customers or suppliers; (c) Employer's marketing
methods, files and credit and collection techniques and files; or (d) Employer's
trade
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secrets, technical information, design, process, procedure, improvement
and other "know-how" or information not of a public nature, regardless of how
such information came into the custody of Employee. The warranty, covenant and
agreement set forth in this Section 10 shall not expire, shall survive this
Agreement and shall be binding upon Employee without regard to the passage of
time or other events.
11. RESTRICTIVE COVENANT. Employee hereby covenants and agrees that, for so
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long as Employee remains employed by Employer and for a period of one (1) year
after termination of employment pursuant to any of Sections 7(b), (c), (d), (e),
(f), (g) or (h), 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 percent (5%) of a
publicly traded corporation, corporate officer or director, or in any other
individual or representative capacity, (i) 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 or Employer's, in or
about any state in which Employer or Employer's Subsidiaries are licensed to
conduct casino operations (the "Operating States"), including without limitation
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any waterways which are wholly within the Operating States, which are partly
within the Operating States and partly without the Operating States, or which
form a boundary between the Operating States and any other state or body public,
(ii) solicit for hire, employment or other retention (whether as an employee,
officer, agent, consultant or advisor, contractor or in any capacity whatsoever)
any of the employees of Employer or any of its Subsidiaries or (iii) seek to
divert or dissuade from continuing to do business with or entering into business
with Employer or any of its Subsidiaries, any supplier or customer of Employer
or any of its Subsidiaries. Employee hereby further acknowledges and agrees that
the restrictive covenant contained in this Section 11 is reasonable as to
duration, terms and geographical area and that the same protects the legitimate
interests of Employer and Employer's Subsidiaries, imposes no undue hardship on
Employee and is not injurious to the public. This Section 11 shall only be
binding on Employee if Employer fulfills its obligations under this Agreement,
including, without limitation, Employer's obligation to comply with the
provisions of Section 7 and Section 8.
12. COUNTERPARTS. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same agreement.
13. SUCCESSION. This Agreement shall be binding upon and inure to the
----------
benefit of Employer and Employee and their respective successors and assigns.
14. ASSIGNMENT. Neither party shall assign this Agreement or delegate his
----------
or its duties hereunder without the express written prior consent of the other
party hereto. Any purported assignment in violation of this Section 14 shall be
null and void and of no force or effect. Employer and Employee hereby
acknowledge and agree that a Change of Control and a Special Change of Control
shall not constitute an assignment of this Agreement for purposes of this
Section 14.
15. AMENDMENT OR MODIFICATION. This Agreement may not be amended, modified,
-------------------------
changed or altered except by a writing signed by both Employer and Employee.
10
$$
16. GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Texas in effect on the Effective Date
without any regard to the conflict of laws principles thereof.
17. NOTICES. Any and all notices required under this Agreement shall be in
-------
writing and shall either hand-delivered or mailed by certified mail, return
receipt requested addressed to:
TO EMPLOYER: Chairman of the Board
----------- Hollywood Casino Corporation
Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ 48
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
WITH A COPY TO: General Counsel
-------------- Hollywood Casino Corporation
Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ 48
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
TO EMPLOYEE: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------- ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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 made by notice as provided in this Section 17.
18. INTERPRETATION. The preamble recitals to this Agreement are
--------------
incorporated into and made a part of this Agreement. Titles of sections are for
convenience only and are not to be considered a part of this Agreement.
19. 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.
20. DISPUTE RESOLUTION. Except for equitable actions seeking to enforce the
------------------
provisions of Section 10 and Section 11 of this Agreement, jurisdiction and
venue for which is hereby granted to Dallas County, Texas, 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 Dallas, Texas, in accordance with the Employment
Dispute Resolution Rules of the American Arbitration Association. This Agreement
to arbitrate shall be specifically enforceable in any court of competent
jurisdiction. The results of the arbitration will be binding and conclusive on
the parties hereto. Any arbitrator's award or finding or any judgment or verdict
thereon will be final and unappealable. In the event Employer and Employee can
agree upon the selection of one arbitrator, such arbitrator shall serve as the
11
$$
arbitration panel and shall arbitrate such dispute or controversy pursuant to
the terms hereof. In all other circumstances, the arbitration will have three
individuals acting as arbitrators as follows: one arbitrator will be selected by
Employee, one arbitrator will be selected by Employer, and the two arbitrators
so selected will select a third arbitrator. Unless otherwise agreed to by the
parties to such dispute or controversy, any arbitrator selected by a party will
not be affiliated, associated or related to the party selecting that arbitrator
in any matter whatsoever. The decision of the arbitration panel will be binding
on all parties. Employer shall pay all costs and expenses of Employer and
Employee that are incurred in connection with or as a result of this Section 20.
21. INDEMNIFICATION. Employer shall, to the fullest extent permitted by
---------------
law, indemnify and advance expenses to, and hold Employee forever harmless
against, any and all claims, suits, judgments, liabilities, settlements, costs,
expenses, assessments, penalties and similar financial imposts and detriments
incurred by Employee, whether as an officer or employee of Employer or in any
other capacity, including, without limitation, reasonable attorneys' and other
experts' fees incurred in connection with any claim or action involving Employee
or threatened in connection with the performance by Employee of his duties in
connection with the business of Employer, except that Employer shall not be
liable for any act or omission of Employee that is found by a court of competent
jurisdiction to be an act or omission of gross negligence by Employee or an act
of material and willful misconduct by Employee. This Section 21 (and the
corresponding obligation of Employer under Section 22) shall survive any
termination of this Agreement for the period of the applicable statute of
limitations for which any such claim covered by this Section 21 may be brought.
22. ADVANCEMENT OF EXPENSES.
-----------------------
(a) Disputes Under this Agreement. In the event that a claim for
-----------------------------
payment or benefits under this Agreement is disputed, Employer shall
advance to Employee all costs and expenses (including attorneys' and other
experts' fees) incurred by Employee, including any fees and expenses
incurred in connection with Section 20 (collectively, "Employee Expenses"),
-----------------
which advancement shall be on a "rolling" basis, in each case within five
(5) days of presentation by Employee of invoices therefor.
(b) Other Proceedings. In the event that Employee incurs Employee
-----------------
Expenses in defending any civil, criminal, administrative or investigative
action, suit or proceeding for which Employee may be indemnified pursuant
to Section 21, Employer shall advance to Employee all Employee Expenses,
which advancement shall be on a "rolling" basis, in each case within five
(5) days of presentation by Employee of invoices therefor.
(c) Reimbursement. Employee hereby agrees to reimburse Employer for
-------------
the advancement of any Employee Expenses under this Section 22 if a dispute
or action brought by Employee is found by an arbitrator or court of
competent jurisdiction (and such finding is binding and no longer
appealable) to be frivolous or made in bad faith.
23. WAIVER. None of the terms of this Agreement, including this Section 23,
------
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.
12
$$
24. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
------------------
between Employer and Employee with respect to the subject matter hereof and this
Agreement supersedes any prior understandings, agreements or undertakings by and
between Employer and Employee with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
13
$$
IN WITNESS WHERE 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:
---------
HOLLYWOOD CASINO CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: Chief Executive Officer
EMPLOYEE:
---------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
$$
TABLE OF CONTENTS
Page
1. DEFINITIONS............................................................1
2. PRIOR EMPLOYMENT.......................................................3
3. BASIC EMPLOYMENT AGREEMENT.............................................4
4. DUTIES OF EMPLOYEE.....................................................4
5. ACCEPTANCE OF EMPLOYMENT...............................................4
6. TERM...................................................................4
7. SPECIAL TERMINATION PROVISIONS.........................................4
(a) Death of Employee.............................................4
(b) Disability of Employee........................................4
(c) Cause.........................................................5
(d) Without Cause.................................................5
(e) Change of Employment..........................................5
(f) Change of Control.............................................5
(g) Special Change of Control.....................................6
(h) Post-Transition Termination Right.............................6
(i) "Rabbi Trust" Funding.........................................7
(j) Full Settlement, Mitigation...................................7
8. COMPENSATION TO EMPLOYEE...............................................7
(a) Base Salary...................................................7
(b) Base Salary Adjustment........................................7
(c) Incentive Bonus...............................................8
(d) Employee Benefit Plans........................................8
(e) Expense Reimbursement.........................................8
(f) Licensing Expenses............................................8
(g) Vacations and Holidays........................................8
9. LICENSING REQUIREMENTS.................................................9
10. CONFIDENTIALITY........................................................9
11. RESTRICTIVE COVENANT..................................................10
12. COUNTERPARTS..........................................................10
13. SUCCESSION............................................................10
14. ASSIGNMENT............................................................10
15. AMENDMENT OR MODIFICATION.............................................10
$$
TABLE OF CONTENTS
16. GOVERNING LAW.........................................................11
17. NOTICES...............................................................11
18. INTERPRETATION........................................................11
19. SEVERABILITY..........................................................11
20. DISPUTE RESOLUTION....................................................11
21. INDEMNIFICATION.......................................................12
22. ADVANCEMENT OF EXPENSES...............................................12
(a) Disputes Under this Agreement................................12
(b) Other Proceedings............................................12
(c) Reimbursement................................................12
23. WAIVER................................................................12
24. COMPLETE AGREEMENT....................................................13