Exhibit 10.1
AMENDED EMPLOYMENT
AGREEMENT
This AMENDED EMPLOYMENT AGREEMENT
(the “Agreement”) made effective as of the 1st day of
January, 2009 (“Effective Date”) by and between the
MOHEGAN TRIBAL GAMING AUTHORITY (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
MITCHELL GROSSINGER ETESS, residing at 9 Joshua Valley Road, East
Lyme, Connecticut 06333 (“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 the 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 effective
May 8, 2006 providing for the continued employment of
Executive by the Employer (the “2006 Agreement”);
and
WHEREAS, the Employer and Executive
have agreed to amend the 2006 Agreement to establish that
(a) the guaranteed bonuses set forth in the 2006 Agreement
shall be made part of the Executive’s Annual Base Salary,
(b) the Executive shall receive payment of $25,000 as
part of his Annual Base Salary in lieu of the Employer’s
contributions to premiums for a life insurance policy covering the
Executive under the 2006 Agreement, (c) 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 2006 Agreement for the year commencing on the Effective
Date, (d) the Executive has agreed to reduce his Annual Base
Salary under the 2006 Agreement by ten percent (10%) for the
year commencing on the Effective Date, (e) the Employer has
agreed to extend the term of Executive’s contract for six
(6) months, until June 30, 2012, and (d) the
Employer has agreed to a reduction of the “Restricted
Period” regarding constraints on Executive’s
competitive employment to December 31, 2012 in the event that
his employment with Employer ends at any time from January 1,
2012 through June 30, 2012.
NOW, THEREFORE, in consideration of
the promises and the mutual covenants, terms and conditions
hereinafter set forth, and for other good and valuable
consideration, receipt whereof is specifically acknowledged, the
parties hereto hereby agree as follows:
|
1.
|
Effective
Date of Agreement .
|
Executive and Employer mutually
agree that this Agreement is effective on the Effective
Date.
Page 1 of 11
|
2.
|
Nature of
Services and Duties .
|
(A) The Employer hereby agrees to
employ Executive as its President and Chief Executive Officer upon
the terms set forth herein, and Executive hereby accepts such
employment.
(B) Executive shall perform such
duties and services of an executive, managerial and administrative
nature as are customary for a chief executive officer and which,
consistent with the foregoing, the Employer may from time to time
through communication from the Chairman hereafter assign to him.
Such duties shall include, but not be limited to, the
following:
|
|
1.
|
Executive shall
report directly to and be responsible to the Chairman;
|
|
|
2.
|
Executive shall
develop, implement, and monitor the strategic plan for the
Business;
|
|
|
3.
|
Executive shall
have the exclusive responsibility for policy formulation for the
Business, provided, however, that material changes to the existing
Policy and Procedures Manual of Mohegan Sun will be submitted by
Executive to the Chairman for the prior approval in writing of the
Employer. The Chairman may direct Executive to make other changes
to the Policy and Procedures Manual upon a vote of the Management
Board; provided, however, that the Management Board shall consider
written arguments from Executive prior to voting and no fewer than
six (6) members of the Management Board must vote in favor of
such change;
|
|
|
4.
|
Executive shall
be responsible for developing and adopting measures to improve
customer service, and shall develop, implement, monitor and
evaluate operating budgets;
|
|
|
5.
|
Executive shall
recruit, hire, train, counsel and evaluate divisional
leaders;
|
|
|
6.
|
Executive shall
have the exclusive responsibility and authority to direct the
selection, retention, training, control, and discharge of all
employees performing services in connection with the maintenance,
operation and management of the Business, its facility and any
activity on the premises. The Chairman may give direction to
select, retain, control, or discharge an employee upon a vote of
the Management Board; provided, however, that the Management Board
shall consider written arguments from Executive prior to voting and
no fewer than six (6) members of the Management Board must
vote in favor of such direction;
|
|
|
7.
|
Executive shall be responsible
for the enforcement of the Indian Preference policy as stated in
the Policy and Procedure Manual and Employee Handbook of Mohegan
Sun. Executive shall have the exclusive responsibility in
developing and maintaining the Job Compendium necessary to manage
the Business, including any changes to position titles
|
Page 2 of 11
|
|
unless governed by the Indian
Preference policy. Minimum Qualifications for any newly created
positions or changes to Minimum Qualifications for established
positions will be submitted by Executive to the Chairman for the
prior approval in writing of the Employer. The Chairman may direct
Executive to make other changes to the Job Compendium upon a vote
of the Management Board; provided, however, that the Management
Board shall consider written arguments from Executive prior to
voting and no fewer than six (6) members of the Management
Board must vote in favor of such change;
|
|
|
8.
|
Executive shall
have the exclusive responsibility for developing both the operating
and capital budget. Both the operating and capital budget shall be
presented to the Employer by the second Monday of September
preceding the next fiscal year, and the Employer shall approve or
modify the budget for the fiscal year on or before
September 30 of such year, in consultation with
Executive;
|
|
|
9.
|
Executive shall
have the right to negotiate agreements on behalf of the Business
provided that, unless otherwise specified by policy approved by the
Management Board of the Employer now existing or as amended during
the term of this Agreement, any contract greater than one year in
duration or with a value greater than $50,000 must be approved by
the Management Board. Executive shall give preference to all
certified tribal businesses, which are “qualified.” For
purposes of this subsection, a “qualified” business
must be a competitive bidder and be capable of delivering the
product or performing the service requested; and
|
|
|
10.
|
Executive shall
have the exclusive responsibility for developing processes by which
the Business shall sell, market and account for its products and
services.
|
(C) During the course of this
Agreement and any extensions, only the Executive and no other
employee of the Employer shall have responsibility for reporting to
the Chairman of the Employer or its Management Board, and the
Employer shall not hire any person, other than Executive, to hold
the authority and responsibilities set forth in Paragraph
2(B).
(D) 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.
(E) Except for actions of the
Executive that could be the basis for termination for Cause as set
forth in Paragraph 6(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.
Page 3 of 11
This Agreement shall govern
Executive’s employment with the Employer from the Effective
Date through and including June 30, 2012. This Agreement,
including this paragraph, shall automatically renew for an
additional term of five years unless either party shall notify the
other of its intention to terminate, or unless otherwise terminated
as provided herein. Any such notice of intention to terminate shall
be delivered not later than one hundred twenty (120) days
prior to the end of the then current term and shall be effective at
the end of such term, except as otherwise provided
herein.
Commencing with the Effective Date
and through December 31, 2009, the Employer shall pay
Executive a base annual salary (“Base Annual Salary”)
in the amount of $1,358,291.38, payable in equal weekly
installments of $26,120.99 each. Commencing January 1, 2010,
and on each January 1 thereafter during the term of this
Agreement, the then current 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.
|
5.
|
Reimbursement of Certain Expenses; Vacation;
Medical Benefits .
|
(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 the 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 connection of 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 (at least two weeks of
which is recommended to be taken in 14 consecutive
days).
(C) Executive shall participate in
such employee benefit plans and programs (including but not limited
to medical 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 (not to be included as
COBRA coverage) after any termination by Employer of
Executive’s employment hereunder if such termination was
without Cause, as hereinafter defined.
Page 4 of 11
|
6.
|
Disability;
Termination .
|
(A) If Executive shall become unable
to perform all of his duties set forth in Paragraph 2 of this
Agreement due to mental or physical disability, all compensation
and benefits provided in 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 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 from such mental or physical disability (as
reasonably certified by a physician designated by the Employer and
reasonably satisfactory to Executive). 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 6(B). If the physician designated by the
Employer certifies that Executive is permanently disabled,
Employer’s obligations under this Agreement shall cease,
provided, however, that Executive shall be entitled to the
disability benefits set forth in Paragraph 6(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 6(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 rates, 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 pr
