|
Exhibit 10.31
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement" ) is
effective as of this 26th day of June, 2008, by and between the
Seneca Gaming Corporation (" Parent "), a governmental
instrumentality of the Seneca Nation of Indians of New York (the "
Nation ") and Robert Chamberlain (" Executive ").
WHEREAS, Parent desires that Executive serve as the Senior Vice
President of Design and Construction of Parent and each of the
Seneca Niagara Falls Gaming Corporation (" SNFGC "), the
Seneca Territory Gaming Corporation (" STGC "), and the
Seneca Erie Gaming Corporation (" SEGC "), each a
wholly-owned subsidiary of Parent and a governmental
instrumentality of the Nation (collectively, the "
Subsidiaries " and together with Parent, " Employer
"); and
WHEREAS, Executive desires to serve as Senior Vice President of
Design and Construction of Employer in accordance with the terms
and conditions of this Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1.
Employment . Employer hereby employs
Executive as its Senior Vice President of Design and
Construction. Executive shall report and be accountable to
and work under the authority of the President and Chief Executive
Officer and the Board of Directors of Parent (the "Board").
Executive shall perform such duties and have such responsibilities
that are customary for such position and including those that may
be specified from time to time by the President and Chief Executive
Officer and/or the Board that are not inconsistent with such
position.
2.
Term . The term of this Agreement
shall commence as of June 26, 2008 (the "Commencement Date")
and terminate on June 25, 2011 (the "Termination Date"),
unless renewed by a subsequent written agreement of the
parties. The parties agree that they shall enter into good
faith discussions regarding renewal/non-renewal of this Agreement
no later than twelve (12) months prior to the Termination
Date. In the event such discussions are ongoing as of the
Termination Date, this Agreement shall renew on a month-to-month
basis, provided, that, under all circumstances, the other party
shall be entitled to no less than one hundred eighty (180) days
notice prior to the effectiveness of the other party’s
non-renewal, if applicable.
3.
Compensation .
(a)
Executive shall be paid an annual base salary ("Base
Compensation") of Five Hundred Fifty Thousand Dollars ($550,000.00)
for Employer’s fiscal year ending September 30,
2008. Employer shall review said salary on an annual basis
(prior to or in connection with the close of its fiscal year) at
which time Employer shall determine in its sole discretion whether
or not said salary shall be increased and the timing thereof.
Said salary shall be payable in periodic payments in accordance
with Employer’s regular payroll practices.
(b)
Executive shall be provided with coverage under
Employer’s employee benefit insurance programs and retirement
programs, if any, at least equal to the coverage provided to other
senior executive officers of Employer.
(c)
Executive shall also be eligible to receive
performance or incentive compensation, which is approved by the
Board in its sole discretion. Said additional performance or
incentive compensation, if any, shall be in addition to and shall
not lessen or reduce the Base Compensation.
(d)
Should Executive become unable to perform the duties
required under this Agreement as a result of temporary, documented
medical disability, he shall be eligible to continue to receive his
Base Compensation for a period of up to one hundred and eighty
(180) days.
4.
Licensing Issues . Executive
represents and warrants to Employer that he shall maintain in good
standing such licenses as may be required pursuant to the
Nation-State Gaming Compact between the Nation and the State of New
York (the "Compact") and/or the Nation’s or Employer’s
gaming ordinances as in effect on the date hereof, as may be
necessary to enable him to engage in his employment
hereunder.
5.
Termination .
(a)
Executive’s employment hereunder may be
terminated by Parent only under the following circumstances and
such termination by Parent shall be a termination with respect to
Parent and each of the Subsidiaries, unless otherwise determined by
the Board:
(i)
upon revocation or disapproval of such licenses for
Executive as are required pursuant to the Compact and/or by the
Nation’s or Employer’s gaming ordinances, provided,
that, in the event Executive appeals the grounds for such
revocation, disapproval or suspension, Employer shall suspend
Executive without compensation during the pendency of such appeal,
with reinstatement of Executive and reimbursement of such
compensation by Employer in the event such appeal is
successful. The foregoing shall not act as a limitation on
the rights and/or obligations of the parties otherwise included in
this Agreement;
(ii)
Executive shall commit an act constituting "Cause,"
which is defined to mean an act of dishonesty by Executive intended
to result in gain or personal enrichment of Executive or others at
Employer’s expense, or the deliberate and intentional refusal
by Executive (except by reason of disability) to perform his duties
hereunder, or by acts constituting gross negligence in the
performance of such duties, or the failure to perform any material
term or condition of this Agreement after written notice thereof
from Company and a reasonable opportunity to cure such failure (as
determined by Company and specified in the notice of breach);
or
(iii)
Executive shall die or Employer shall for any reason
within Employer’s or the Nation’s control permanently
cease to conduct casino gaming on Nation Territory. For
purposes of this
2
Agreement, "Nation Territory" shall include current or future
Nation territory where Employer conducts or will conduct its gaming
operations as of the date Executive’s employment is
terminated.
(b)
If Executive’s employment should be terminated
under Section 5(a) above (or any subsection) then
Employer shall at that time pay Executive (or his estate, as
applicable) Base Compensation earned through the date Executive is
terminated, whereupon Employer shall have no further liability or
obligation to Executive under this Agreement or
otherwise.
(c)
If Executive’s employment should be terminated
by Parent for any reason other than those specified in
Section 5(a) above (it being understood that a purported
termination for Cause which is contested by Executive and finally
determined not to have been proper shall be treated as a
termination under this Section 5(c)), then Employer shall:
(i) pay Executive his Base Compensation earned, but unpaid,
through the date Executive is terminated, (ii) continue to
pay Executive his Base Compensation in effect as of the date of
termination for a period following his termination (the "Severance
Period") equal to the lesser of (A) eighteen (18) months or
(B) the remainder of the period ending on the Termination
Date, and (iii) to the extent elected by Executive, pay for
the cost of (A) Executive’s premiums for continuation
healthcare coverage under Section 4980B of the Internal
Revenue Code of 1986, as amended ("COBRA"), and (B) the
premiums for Exec-u-Care® or any similar executive medical
reimbursement insurance plan maintained by Employer on the date
Executive’s employment is terminated, for the lesser of
(1) the Severance Period, (2) until Executive is no
longer eligible for COBRA continuation coverage, or (3) until
Executive obtains comparable healthcare benefits from any other
employer during the Severance Period, whereupon Employer shall have
no further liability or obligation to Executive under this
Agreement or otherwise; provided , however , that
Executive shall have a duty to mitigate damages as follows: during
the Severance Period, Executive shall endeavor to mitigate damages
by seeking employment with duties and salary comparable to those
provided for herein, and if he shall obtain such employment, he
shall reimburse Employer the amount of the compensation he has
received from such other entity for such period, but not to exceed
the amount of the compensation Employer shall have paid him for
such period.
(d)
Executive may terminate his employment for any
reason upon one-hundred-twenty (120) days written notice to
Parent. If Executive terminates his employment pursuant to
this paragraph 5(d), Employer shall pay Executive the Base
Compensation earned through the date of termination, whereupon
Employer shall have no further liability or obligation to Executive
under this Agreement or otherwise.
(e)
Executive acknowledges and agrees that the payments
set forth in this section 5 constitute liquidated damages for
termination of his employment during the employment term and such
liquidated damages shall be his only remedy with respect to any
claim, including, without limitation, breach of contact, he may
have under this Agreement and that prior to receiving any such
payments under Section
3
5 and as a material condition thereof, Executive shall sign and
agree to be bound by a general release of claims against Employer
related to Executive’s employment (and termination of
employment) with Employer in substantially the form as attached
hereto as Exhibit A as may be modified by Employer in
good faith to reflect changes in law or its employment
practices. Notwithstanding any other provision of this
Agreement to the contrary, Executive acknowledges and agrees that
other than any claim for the liquidated damages contemplated
hereunder, he waives any rights to be awarded any other damages
with respect to any claim he may have under this Agreement,
including, without limitation, compensatory or punitive
damages.
6.
Restrictive Covenants .
(a)
Executive acknowledges that: (i) as a result of
Executive’s employment with Employer, he will obtain
secret, proprietary and confidential information concerning the
business of Employer, in
|
