Exhibit 10.3
AMENDED EMPLOYMENT
AGREEMENT
This AMENDED
EMPLOYMENT AGREEMENT (the Agreement ) made effective as of the
1 st day of January, 2009 (the
“Effective Date”), by and between the MOHEGAN TRIBAL
GAMING AUTHORITY (the “Authority;” or the
“Employer”), an instrumentality of THE MOHEGAN TRIBE OF
INDIANS OF CONNECTICUT (the “Tribe”), a sovereign
Indian nation having an address of One Mohegan Sun Boulevard,
Uncasville, Connecticut 06382, and LEO M. CHUPASKA, residing at 68
Swanty Johnson Road, Uncasville, Connecticut 06382
(“Executive”).
WITNESSETH:
WHEREAS, the Employer owns and
operates, among other things, the Mohegan Sun casino and resort in
Uncasville, Connecticut, a harness racetrack located in
Wilkes-Barre, Pennsylvania known as Pocono Downs, along with
several off-track wagering facilities located in the State of
Pennsylvania, as well as investments in other proposed gaming
enterprises and other businesses (as presently existing and
hereafter developed, the “Business”); and
WHEREAS, the Employer and Executive
entered into that certain employment agreement dated the 13th day
of July, 2006 (but effective October 1, 2005), providing for
the continued employment of Executive by the Employer (the
“2006 Agreement”); and
WHEREAS, the parties amended the
2006 Agreement by the terms of an letter agreement dated
February 4, 2008 to, amongst other things, extend the term of
the Executive’s employment through and including
December 31, 2010; and
WHEREAS, the parties acknowledge
that the 2006 Agreement, together with the amendment thereto under
the February 4, 2008 letter agreement (collectively, the
“2008 Agreement”) are incorporated in this Amended
Employment Agreement; and
WHEREAS, the parties hereto have
agreed to further amend the 2008 Agreement to establish that
(a) the guaranteed bonuses set forth in the 2008 Agreement
shall be made part of the Executive’s Annual Base Salary,
(b) the Executive has agreed to forego the annual salary
increase of at least five percent (5%) of his prior
year’s Annual Base Salary under the 2008 Agreement for the
year commencing on the Effective Date, (c) the Executive has
agreed to reduce his Annual Base Salary under the 2008 Agreement by
ten percent (10%) for the year commencing on the Effective
Date, (d) the Employer has agreed to extend the term of
Executive’s contract for six (6) months, until
June 30, 2011, and (e) the Employer has agreed to a
reduction of the “Restricted Period” regarding
constraints on Executive’s competitive employment to
December 31, 2011 in the event that his employment with
Employer ends at any time from January 1, 2011 through
June 30, 2011.
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NOW, THEREFORE, in consideration of
the promises and the mutual covenants, terms and conditions
hereinafter set forth, and for other good and valuable
consideration: the receipt and sufficiency whereof is specifically
acknowledged, the parties hereto hereby agree as
follows:
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1.
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Nature of
Services and Duties
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(A) The Employer hereby agrees to
continue to employ Executive as its Chief Financial Officer of the
Authority upon the terms set forth herein, and Executive hereby
accepts such continued employment. It is acknowledged by the
parties that there is a Chief Financial Officer of Mohegan Sun, and
Executive shall not be responsible for the performance of duties of
the Chief Financial Officer of Mohegan Sun.
(B) Executive shall perform such
duties and services of an executive, managerial and administrative
nature as are customary for a Chief Financial Officer and which,
consistent with the foregoing, the Employer may from time to time
through communication from the Chief Operating Officer hereafter
assign to him. Such duties shall include, but not be limited to,
cash management, investments with financial institutions, banking
relationships, administering corporate financial functions and
supervising the financial accounting department. Executive shall
report exclusively to the Chief Operating Officer of the Employer.
The Employer shall not restrict, reduce or otherwise limit
Executive’s responsibility or authority without his
consent.
(C) Executive shall devote his best
efforts, and ability and all required business time to the
performance of his duties and responsibilities hereunder to achieve
the goals set forth in the Employer’s annual business plan.
Executive shall perform all of his duties to the Employer
faithfully, competently, and diligently.
(D) Except for actions of the
Executive that could be the basis for termination for Cause as set
forth in Paragraph 7(C), below, the Employer shall indemnify,
defend, and hold Executive harmless, including the payment of
reasonable attorney fees, if the Employer does not directly provide
Executive’s defense, from and against all claims made by
anyone, including, but not limited to, a corporate entity, company,
other employee, agent, patron, tribal member, or any member of the
general public with respect to any claim that asserts as a basis,
any acts, omissions, or other circumstances involving the
performance of Executive.
This Agreement shall be effective
from the date set forth in the opening paragraph of this Agreement
(the “Effective Date”).
This Agreement shall govern
Executive’s employment with the Employer from the Effective
Date through and including June 30, 2011.
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Commencing with the Effective Date
and until December 31, 2009, the Employer shall pay Executive
a Base Annual Salary in the amount of $721,856.12, payable in equal
weekly installments of $13,881.85. Commencing January 1, 2010,
and on each January 1 thereafter during the term of this
Agreement, the Base Annual Salary shall be increased in an amount
mutually agreed to by Executive and the Employer, which amount
shall in no event be less than 5% of the then current Base Annual
Salary.
(A) The Employer may, within its
discretion, at any time during the term of this Agreement apply for
and procure as owner and for its own benefit insurance on the life
of Executive, in such amounts and in such form as the Employer may
choose. Executive shall have no interest whatsoever in any such
policies, but he shall upon request by the Employer submit to such
medical examinations, supply such information, and execute such
documents as may be required by the Employer or the insurance
companies to whom the Employer has made application.
(B) So long as Executive is employed
hereunder, the Employer shall maintain a life insurance policy on
the life of Executive in the face amount of $168,000. The Employer
shall be and remain the owner of such policy of life insurance and
shall enjoy all incidents of ownership including the right to
designate the beneficiary and the right to borrow on such policy;
provided, however, that the beneficiary of such policy shall be the
spouse of the Executive, his child or children, trustees for their
benefit, his estate or any one or more of them; and provided
further, that the Employer agrees (if such policy has a cash
surrender value) that it will not exercise its right to borrow on
such policy. The Employer shall pay all premiums on such policy
when due, and, in the event of the death of Executive during
employment, the Employer shall be a beneficiary of the policy to
the extent of the aggregate amount of premium paid.
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6.
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Reimbursement of Certain Expenses: Vacation:
Medical Benefits
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(A) The Employer will reimburse
Executive for necessary and reasonable business expenses incurred
by him in the performance of his duties hereunder, provided, that
he shall obtain the approval for such expenditures in accordance
with the procedures adopted by Employer from time to time and
generally-applicable to its executive-level employees, including
such procedures with respect to submission of appropriate
documentation and receipts. Failure by Executive to follow such
procedures shall entitle the Employer to refuse to reimburse
Executive for such expenses until such time as such failure has
been cured. It is understood and agreed that Employer shall not be
responsible for any expense of Executive for leasing or operation
of a vehicle for Executive (except that Executive shall be entitled
to reimbursement for the expenses, including mileage, actually
incurred in
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connection with his use of his automobile for
the business-related purposes of the Employer), nor for any expense
of Executive for legal expenses or tax planning expenses incurred
by Executive in interpreting this or any other agreement between
Executive and Employer.
(B) Executive shall be entitled to
four weeks paid vacation per fiscal year.
(C) Executive shall participate in
such employee benefit plans and programs (including but not limited
to medical and life insurance programs) as are now or may hereafter
be adopted by the Employer for its executive employees and their
families. Employer shall continue to provide such medical insurance
coverage for a period of one (1) year after any termination by
Employer of Executive’s employment hereunder if such
termination was without Cause, as hereinafter defined.
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7.
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Disability; Termination
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(A) If Executive shall become unable
to perform all of his duties set forth in Paragraph 1 of this
Agreement due to mental or physical disability, all compensation
and benefits provided m this Agreement shall continue to be paid
and provided in full for a period not exceeding one hundred and
eighty (180) consecutive days. Upon completion of such one
hundred and eighty (180) days (or if Executive shall be
disabled by the same incapacity for an aggregate period of one
hundred and eighty (180) days in any period of three hundred
and sixty (360) consecutive days by the same incapacity) the
Employer may, at its sole option, suspend Executive’s
employment until Executive is recovered (as reasonably certified by
a physician designated by the Employer) from such mental or
physical disability. During any period of suspension on account of
disability, Executive shall receive only such compensation as may
be provided under the disability insurance described in Paragraph
7(B). If the physician designated by the Employer certifies that
Executive is permanently disabled, Employer’s obligations
under this Agreement shall cease; provided, however, Executive
shall be entitled to the disability benefits set forth in Paragraph
7(B), below.
(B) Employer, at the sole expense of
Employer, shall provide disability insurance coverage for
Executive. Such policy shall provide payment of 50% of
Executive’s Base Annual Salary, commencing with suspension or
termination of employment, pursuant to Paragraph 7(A), above, by
reason of physical or mental disability, and for a period of two
(2) years if such disability was the result of injury and to
age 65 if such disability was the result of physical or mental
illness. In the event the Employer is unable to obtain disability
insurance in the amount required, or is unable to obtain all or
part of such insurance at standard rams, the Employer shall at its
option obtain part or all of such insurance at non-standard rates
or shall self-insure in whole or in part for the time periods set
forth in this paragraph.
(C) Subject to the provisions of
this paragraph, the Employer may terminate Executive’s
employment for Cause, defined as (i) Executive’s
violation of the Restrictive Covenants as defined in Paragraph 10
of this Agreement, (ii) the loss or suspension by the State of
Connecticut or by the Mohegan Tribal Gaming Commission of
Executive’s license
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for Class III gaming for a period of thirty
(30) consecutive days, (iii) Executive’s conviction
of any crime involving fraud, theft or moral turpitude, or
(iv) Executive’s intentional or material breach
of’ his obligations under this Agreement. Employer may
suspend Executive without pay upon Executive’s arrest for any
alleged felony against the Employer or the Tribe. In the event that
Executive is found not guilty or otherwise exonerated for an
alleged crime against Employer or the Tribe, Executive’s
suspended pay shall be reimbursed to him.
Except in the event of suspension
upon Executive’s arrest, if Employer desires to terminate
Executive for Cause, Employer shall give written notice
sp