EXHIBIT 10(19)
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of April 1,
1998, by and between ▇▇▇▇▇▇'▇ Operating Company, Inc. and/or one or more of its
subsidiaries ("Company") and [Name of Executive] ("Executive").
The Company and the Executive agree as follows:
1. Employment. The Company hereby employs the Executive as [Title] or in
such other capacity as the Company reasonably shall designate.
2. Duties. During the term of this Agreement ("Active Employment"), the
Executive shall devote substantially all of his working time, energies, and
skills to the benefit of the Company's business. The Executive agrees to serve
the Company diligently and to the best of his ability, and to follow the
policies and directions of the Company.
3. Compensation. The Executive's compensation and benefits during his
Active Employment shall be as follows:
(a) Base Salary. The Company shall pay the Executive a base salary
("Base Salary") of [$Salary] per year, which will be reviewed annually by the
Company during the term of this Agreement in accordance with its compensation
practices regarding senior executives. The Executive's Base Salary shall be paid
biweekly in accordance with the Company's normal payroll schedule. All payments
shall be subject to the Executive's chosen benefit deductions and the deduction
of payroll taxes and similar assessments as required by law.
(b) Bonus. In addition to the Base Salary, the Executive shall be
eligible for an annual bonus in accordance with the Company's bonus plan.
4. Insurance and Benefits. The Executive will be eligible to participate
in each employee benefit plan and receive each executive benefit that the
Company provides for its senior executives, in accordance with the applicable
plan rules.
5. Term. The term of this Agreement shall be for four (4) years, beginning
April 1, 1998, and ending March 31, 2002.
6. No Cause Termination/Non-Renewal of Agreement. The Company may
terminate the Executive's Active Employment at any time without cause upon
thirty (30) days' prior written notice ("no cause termination"). The Company
also, in its sole discretion, may elect not to renew this Agreement upon its
expiration ("non-renewal of Agreement"). In the event of such termination or
non-renewal by the Company, the Executive shall remain an employee of the
Company and shall be entitled only to the salary and benefits set forth below,
unless otherwise specified in this Agreement.
Benefit Termination Date
Base Salary (rate as of 18 months (78 weeks) ("Salary
Separation Date) Continuation Period") from last day
worked ("Separation Date").
PTO and Service Credit Separation Date.
Use of Credit Cards Separation Date.
Bonus--Payment and Eligibility (i) Eligible for prior year bonus if
termi-nated during payment year but
prior to payment; (ii) eligible for
prorated bonus for current year if
in job for more than
6 months and termination occurs
after June 30; (iii) not eligible
for bonus for year following
termination year.
Group Health and Life End of Salary Continuation Period.
Insurance 18-month COBRA rights period for
health insurance will commence on
Separation Date. (See also
Paragraph 10.)
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Benefit Termination Date
Retaining Existing Stock (i) Options from grants made prior
Options for Vesting and Other to 4/1/98 that have vested prior to
Rights Separation Date can be exercised
through end of Salary Continuation Period,
but unvested options from such grants
forfeited as of Separation Date; (ii)
options from grants made after 4/1/98
retained for exercise and vesting through
end of Salary Continuation Period. Exercise
of vested options after Salary Continuation
Period per plan rules.
Accelerated vesting of all options
if Change of Control occurs during
Salary Continuation Period
Eligibility for New Separation Date.
Restricted Stock or New Stock
Options
TARSAP Next potential vesting, based on Performance
targets, after Separation Date, at CEO's and
HRC's discretion. Accelerated vesting of all
shares if Change of Control occurs during
Salary Continuation.
Use of Financial Counseling End of Salary Continuation Period.
per Plan Provisions The maximum remaining benefit shall
be annual benefit remaining as of
Separation Date.
Savings and Retirement Plan End of year of Separation Date.
Deduction (Active
Participation)
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Benefit Termination Date
Executive Deferred End of year of Separation Date.
Compensation Plan/Deferred Distribution will commence after
Compensation Plan (Active Salary Continuation Period, in
Participation) accordance with previously made
elections, and at the termination rate
unless the Executive qualifies for the
retirement rate. (See also Paragraph 11.) 3X
death benefit provision waived for death
after Separation Date. EDCP and other
deferred compensation balances will continue
to be protected by then-existing Escrow
Agreement subject to all terms and
conditions thereof.
7. Death of Executive. Upon the death of the Executive during his Active
Employment, his salary and all rights and benefits hereunder will terminate, and
his estate and beneficiary(ies) will receive the benefits to which they are
entitled under the terms of the Company's benefit plans and programs by reason
of a participant's death during employment, including the 3X death benefit
provided by the EDCP (applies only if death during Active Employment) and the
applicable rights and benefits under the Company's stock plans. If the Executive
dies during the Salary Continuation Period, all of the provisions of the
previous sentence apply except that the remaining salary continuation will be
paid in a lump sum to the Executive's estate.
8. Termination by Company for Cause. The Company shall have the right to
terminate the Executive's Active Employment for cause. All salary and benefits
shall cease, except COBRA rights and as otherwise provided in applicable benefit
plans. Termination for cause shall be effective immediately upon notice sent or
given to the Executive. For purposes of this Agreement, the term "cause" shall
mean and be strictly limited to: (i)
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conviction of any crime that materially discredits the Company or is materially
detrimental to the reputation or goodwill of the Company; (ii) commission of any
material act of fraud or dishonesty against the Company, or commission of an
immoral or unethical act that materially reflects negatively on the Company, or
engaging in willful misconduct; provided that the Executive shall first be
provided with written notice of the claim against him under this provision (ii)
and with an opportunity to contest said claim before the Board of Directors; or
(iii) material breach of the Executive's obligations under Paragraph 2. of this
Agreement, as so determined by the Board of Directors.
9. Voluntary Termination/Notice Period. The Executive may terminate this
Agreement voluntarily at any time and for any or no reason during its term upon
thirty (30) days' prior written notice to the Company, except as specified in
this paragraph. If the Executive is going to work or act in competition with the
Company as described in Paragraph 14. of this Agreement, the Executive must give
the Company six (6) months' prior written notice of his intention to do so. The
written notice provided by the Executive shall specify the last day to be worked
by the Executive ("Separation Date"), which Separation Date must be at least
thirty (30) days or six (6) months (as appropriate) after the date the notice is
received by the Company. Unless otherwise specified herein, or in a writing
executed by both parties, the Executive shall not receive any of the benefits
provided in this Agreement after the Separation Date set forth in his written
notice.
10. Certain Health Insurance Benefits. If (i) the Executive reaches the
age of 50 and, when added to his number of years of continuous service with the
Company, the sum of his age and years of service equals or exceeds 65, and at
any time after the occurrence of both such events the Executive's employment is
terminated pursuant to Paragraph 6., above; or (ii) the Executive reaches the
age of 55 and has attained 10 years of continuous service with the Company, and
at any time after the occurrence of both such events the Executive's employment
terminates for any reason other than by the Company for "cause" as described in
paragraph 8., above, the Executive and his then-eligible dependents shall be
entitled to participate in the Company's group health insurance plan, as amended
from time to time by the
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Company, after the Executive's Separation Date or the end of the Salary
Continuation Period, as applicable, for the remainder of the Executive's life
("Life Coverage Period"). During the Life Coverage Period, the Executive shall
pay 20% of the current premium (revised annually) on an after-tax basis each
quarter, and the Company shall pay 80% of said premium on an after-tax basis,
which contribution will be imputed income to the Executive. As soon after the
Separation Date as the Executive becomes eligible for Medicare coverage, the
Company's group health insurance plan shall become secondary to Medicare.
If the Executive engages in any of the activities described in Paragraph
14.(a), below, during the Life Coverage Period, the entitlement of the Executive
and his then-eligible dependents to participate in the Company's group health
insurance plan shall terminate automatically, without any further action or
notice by either party, subject to applicable COBRA rights, which shall commence
on the Separation Date. If the Executive engages in any of the activities
described in said Paragraph 14.(a)(i) in a business which does not compete with
the Company or any of its subsidiaries during the Life Coverage Period, the
Company's group health insurance plan shall become secondary to any primary
health insurance plan or coverage made available to the Executive by that
business.
11. EDCP Retirement Rate. If the Executive reaches the age of 50 and, when
added to his number of years of continuous service with the Company, the sum of
his age and years of service equals or exceeds 65, and at any time after the
occurrence of both such events the Executive's employment is terminated pursuant
to Paragraph 6., above, the Executive shall be entitled to receive his
distributions from EDCP at the retirement rate. For EDCP retirement rate
purposes, the Executive will receive service credit for the Salary Continuation
Period.
12. Change in Control. If a Change in Control, as defined in the
Executive's Severance Agreement, occurs during the Executive's Active
Employment, and if the Severance Agreement is in force when the Change in
Control occurs, then the Severance Agreement supersedes and replaces this
Agreement. If, prior to a Change in Control (as defined above), the Executive's
Active Employment has been terminated for any reason by either party or this
Agreement is not renewed by the Company, then the Executive's Severance
Agreement terminates automatically.
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13. Disability. If the Executive becomes disabled prior to the termination
of his Active Employment or the non-renewal of this Agreement, he will be
entitled to apply at his option for the Company's long-term disability benefits.
If he is accepted for such benefits, then the terms and provisions of the
Company's benefit plans and the programs (including the EDCP and the Company's
Stock Option and Restricted Stock Plans) that are applicable in the event of
such disability of an employee shall apply in lieu of the salary and benefits
under this Agreement, except that (i) the Escrow Agreement (if then in force)
and his indemnification agreement will continue in force (the Escrow Agreement
will be subject to amendment or termination in accordance with its terms), and
(ii) he will be entitled to the lifetime group insurance benefits described in
Paragraph 10. If the Executive is disabled so that he cannot perform his duties
(as determined by the Human Resources Committee (HRC), and if he does not apply
for long-term disability benefits or is not accepted for such benefits, then the
Company may terminate his duties under this Agreement. In such event, he will
receive eighteen months salary continuation, together with all other benefits,
and during such period of salary continuation any stock options and restricted
stock grants then in existence will continue in force for vesting purposes.
However, during such period of salary continuation for disability, Executive
will not be eligible to participate in the annual bonus plan, nor will he be
eligible to receive stock option or restricted stock grants or any other
long-term incentive awards except to the extent approved by the HRC.
If the Executive becomes disabled during the Salary Continuation Period,
he will be entitled only to the salary and benefits described in Paragraphs 6.
and 10., above, for the periods set forth in those respective paragraphs.
14. Non-competition.
(a) Non-competition. During the Executive's Active Employment, and
during the Salary Continuation Period described in Paragraph 6., above, the
Executive:
(i) shall not engage in any activity, whether as employer,
proprietor, partner, stockholder (other than the holder of less than 5% of the
stock of a corporation the securities of which are traded on a national
securities exchange or in the over-the-counter market), director, officer,
employee, consultant
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or otherwise, in competition with (x) the casino, casino/hotel and/or
casino/resort businesses conducted at the date hereof by the Company or any
subsidiary or affiliate ("Company" for purposes of this paragraph 14) or (y) any
casino, casino/hotel and/or casino/resort business in which the Company is
substantially engaged at any time during the active employment period;
(ii) shall not solicit, in competition with the Company, any
person who is a customer of the businesses conducted by the Company at the date
hereof or of any business in which the Company is substantially engaged at any
time during the term of this Agreement.
(b) Scope of Covenants; Remedies. The following provisions shall
apply to the covenants of the Executive contained in this Paragraph 14.:
(i) the covenants contained in paragraphs (i) and (ii) of
Paragraph 14.(a) shall apply within the United States, Canada and Mexico, plus
any territories in which Company is actively engaged in the conduct of business
while the Executive is employed under this Agreement, including, without
limitation, the territories in which customers are then being solicited;
(ii) without limiting the right of the Company to pursue all
other legal and equitable remedies available for violation by the Executive of
the covenants contained in this Paragraph 14., it is expressly agreed by the
Executive and the Company that such other remedies cannot fully compensate the
Company for any such violation and that the Company shall be entitled to
injunctive relief to prevent any such violation or any continuing violation
thereof;
(iii) each party intends and agrees that if, in any action
before any court or agency legally empowered to enforce the covenants contained
in this Paragraph 14., any term, restriction, covenant or promise contained
therein is found to be unreasonable and accordingly unenforceable, then such
term, restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency; and
(iv) the covenants contained in this Paragraph 14. shall
survive the conclusion of Executive's employment with the Company.
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15. Post Employment Cooperation. Upon the termination of his Active
Employment, the Executive will cooperate with, and provide information to, the
Company in assuring an orderly transition of all matters being handled by him.
Upon the Company providing reasonable notice to him, he will also appear as a
witness at the Company's request and/or assist the Company in any litigation,
bankruptcy or similar matter in which the Company or any affiliate thereof is a
party; provided that the Company will defray any approved out-of-pocket expenses
incurred by him in connection with any such appearance and that, if the
Executive is no longer receiving salary compensation from the Company, the
Company will compensate him for all time spent, at either his then current
compensation rate or his salary rate as of the Separation Date, whichever is
higher. The Company agrees further to indemnify him as prescribed in his
Indemnification Agreement and Article TENTH of the Certificate of Incorporation
of ▇▇▇▇▇▇'▇ Entertainment, Inc., as amended, filed on November 2, 1989, in the
Office of the Secretary of State of the State of Delaware and recorded in Book
935, Page 780, et seq.
16. Release. Upon the termination of the Executive's Active Employment,
and in consideration of the receipt of the salary and benefits described in this
Agreement, except for claims arising from the covenants, agreements, and
undertakings of the Company as set forth herein and except as prohibited by
statutory language, the Executive forever and unconditionally waives, and
releases ▇▇▇▇▇▇'▇ Entertainment, Inc., ▇▇▇▇▇▇'▇ Operating Company, Inc., their
subsidiaries and affiliates, and their officers, directors, agents, benefit plan
trustees, and employees ("Released Parties") from any and all claims, whether
known or unknown, and regardless of type, cause or nature, including but not
limited to claims arising under all salary, vacation, insurance, bonus, stock,
and all other benefit plans, and all state and federal anti-discrimination,
civil rights and human rights laws, ordinances and statutes, including Title VII
of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act,
concerning his employment with ▇▇▇▇▇▇'▇ Operating Company, Inc., its
subsidiaries and affiliates, and the cessation of that employment
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17. General Provisions.
(a) Notices. Any notice to be given hereunder by either party to the
other may be effected by personal delivery, in writing, or by mail, registered
or certified, postage prepaid with return receipt requested. Mailed notices
shall be addressed to the parties at the addresses set forth below, but each
party may change his or its address by written notice in accordance with this
Paragraph 17.(a). Notices shall be deemed communicated as of the actual receipt
or refusal of receipt.
If to Executive: ---------------------------
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If to Company: ▇▇▇▇▇▇'▇ Operating Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
(b) Partial Invalidity. If any provision in this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provision shall, nevertheless, continue in full force and without
being impaired or invalidated in any way.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Tennessee, without regard to its
conflict of laws provisions.
(d) No Conflicting Agreement. By signing this Agreement, Executive
warrants that he is not a party to any restrictive covenant, agreement or
contract which limits the performance of his duties and responsibilities under
this Agreement or under which such performance would constitute a breach.
(e) Headings. The Section, paragraph, and subparagraph headings are
for convenience or reference only and shall not define or limit the provisions
hereof.
(f) Amendments. Any amendments to this Agreement must be in writing
and signed by both parties.
(g) Binding Agreement. This Agreement is binding on the parties and
their heirs, successors and assigns.
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(h) Survival of Provisions. The provisions of this Agreement shall
survive any termination thereof if so provided herein and if necessary or
desirable fully to accomplish the purposes of such provisions, including without
limitation the rights and obligations of the Executive under Paragraphs 6, 14,
15, and 16 hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇'▇ Operating Company, Inc.
By:
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(typed name)
Executive
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