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Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this " Agreement
") is made and entered into effective this 7th day of September
2007, by and between Jonathan Swain (hereinafter referred to as "
Employee ") and Peninsula Gaming, LLC, a Delaware limited
liability company (hereinafter referred to as " Employer
").
WHEREAS, Employer and Employee are parties to an
Employment Agreement, dated July 14, 2004 (the " Original
Agreement "), and desire to enter into this amended and
restated employment agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the promises made in this
Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties,
and intending to be legally bound hereby, the parties hereby agree
that, effective as of the date hereof, the Original Agreement be,
and hereby is, amended and restated in its entirety as set forth
below:
1. TERM OF AGREEMENT . The term of this
Agreement shall be for an initial three (3) year period commencing
July 14, 2004 through July 13, 2007 (the " Initial Term ")
and shall be renewed for an additional three (3) year period
commencing July 14, 2007 through July 13, 2010 (the " Renewal
Term "). No later than ninety (90) days prior to the
expiration of the Term, Employer shall notify Employee whether this
Agreement will be extended beyond the Renewal Term. In the
event Employer requests that Employee continue his employment after
the expiration date of any applicable term (the " Extended
Term "), the parties agree to immediately negotiate the
provisions of the Extended Term in good faith; provided ,
however , that if the negotiations for the Extended Term are
not completed by the expiration date of the Renewal Term, Employee
may elect to continue his employment during the completion of the
negotiations under the same terms and conditions as contained in
this Agreement. The minimum period for any Extension Term
shall be one (1) year (the Initial Term, the Renewal Term, the
Extended Term, together with any subsequent renewal period,
hereinafter referred to as the " Term ").
2. TERMINATION . This Agreement may be
terminated at any time before any expiration date by the agreement
of the parties, and may be terminated by Employee upon ninety (90)
days advance written notice to the Chief Executive Officer of
Employer (the " CEO "). In the event that this
Agreement is terminated by Employee upon ninety (90) days advance
written notice, Employee shall be entitled to continue receiving
his base salary for so long as Employee is permitted to and
actually continues to render services to Employer during the ninety
(90) day period following such notice. If Employee is
directed by Employer to cease work prior to expiration of the
ninety (90) day period (a " Mutual Termination "), Employee
shall nevertheless be entitled to receive his regular salary for
the ninety (90) day period. In addition, this Agreement may
be terminated by Employer immediately upon the occurrence of any of
the following events: (a) Employee’s death,
(b) Employee becoming physically or mentally disabled (a "
Disability "), which Disability renders Employee unable to
perform, as certified by a mutually agreeable competent medical
physician, a substantial portion of Employee’s duties
hereunder for a continuous period of sixty (60) days or a total of
ninety (90) days in any three hundred sixty-
five (365) day period, (c) Employee’s
commission of an act of embezzlement, fraud, misappropriation
against Employer, (d) Employee’s conviction of, or entry
of a plea of guilty or nolo contendere or its equivalent of,
a felony, (e) Employee’s continued negligence or failure
to discharge Employee’s duties or responsibilities or the
repeated taking of any action prohibited by Employee’s
immediate supervisor, the managing member or the board of managers
of Employer, (f) Employee’s being under the influence of
illegal drugs or chronic alcohol abuse while performing his duties
hereunder, (g) the revocation, suspension for more than thirty
(30) days or voluntary relinquishment of any gaming license
necessary for the performance of Employee’s duties hereunder,
or (h) Employee’s breach or violation of any material
term or material provision of this Agreement ( clauses (a)
through (h) collectively, " Cause "); provided
, however , that, in the case of clauses (e) ,
(f) , (g) or (h) above, Employee shall be
entitled to a detailed explanation of the offense. Employer
shall provide thirty (30) days notice of termination, during which
thirty (30) day period Employee shall have the right to remedy any
such breach or default, but in no event will Employee be entitled
to more than one thirty (30) day notice for breach of violation of
the same offense; subsequent commission of the same offense shall
warrant immediate termination. In the event of a termination
of this Agreement by Employer without Cause (other than in
connection with a Mutual Termination or a termination of employment
upon a Change of Control (as defined below)), during the Term of
this Agreement, Employee shall be entitled to receive (A) as
severance pay the greater of (a) the balance of base
compensation due to Employee for the remainder of the Term or
(b) twelve month’s base compensation, which payments
shall be made as they would otherwise have become due under the
payroll schedule of Employer, (B) the immediate payment for the
value of all Granted Units (as defined below) previously vested, as
described in paragraph 4(b) below and (C) a prorated share
of the cash bonus to which Employee otherwise would be entitled had
Employee’s employment continued to the end of the then
current calendar, as provided in paragraph 4(a) ;
provided , however , that as a condition of receiving
any severance payments under this Agreement, Employee will be
required to execute a settlement and general release of claims
against Employer, its officers, managers, members, agents,
employees, successors and assigns, for matters arising out of or
relating to Employee’s employment with Employer, in form and
substance reasonably satisfactory to the Employer.
3. DUTIES . Employee shall carry out the
duties and responsibilities as the Chief Operating Officer of
Employer (the " COO "). Employee shall have a direct
reporting relationship to the CEO. Employee’s duties
shall include the authority to hire, supervise, discipline and
terminate employees of Employer, provided , however ,
terminations of department head level employees shall be with the
consent of the CEO. Employee shall devote Employee’s
full business time, attention and ability to the business and
affairs of Employer and shall comply with all of Employer’s
policies and codes of conduct, a copy of which has been provided to
Employee. Employee shall use his best efforts to carry out
Employee’s responsibilities as the COO faithfully and
efficiently in a professional manner. Employer acknowledges
and agrees that Employee, in his sole discretion, shall set Las
Vegas, Nevada or Iowa as the location that Employee works in for
carrying out his duties as the COO under this Agreement,
provided , however , it is understood that the
headquarters and the executive offices of Employer shall be located
in Dubuque, Iowa.
2
Employee shall not provide any consulting or
other services to third parties, that are related to the gaming
industry without Employer’s prior consent, which consent
shall not be unreasonably withheld or delayed; provided ,
that such consent may be withheld in Employer’s sole
discretion in the event that such consulting or other services
would interfere with the performance of Employee’s duties as
the COO under this Agreement or would result in a breach by
Employee of the non-competition or non-disclosure agreements set
forth in Section 8 of this Agreement.
4. COMPENSATION AND BENEFITS .
a.
Employee shall be paid by Employer as compensation for his services
for the twelve (12) month period commencing on the date hereof the
base annual salary of four hundred and forty thousand dollars
($440,000), payable in accordance with the payroll policy of
Employer, less such deductions or amounts to be withheld as shall
be required by applicable law and regulations or as elected by
Employer for any employee benefit plans of Employer.
Employee’s base annual salary shall be reviewed on January
1st of each year and adjusted upward annually by not less than five
percent (5%) of the prior year’s compensation. In
addition to th
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