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Exhibit 10.1 EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement
("Agreement"), including the attached Exhibit "A," is entered into
between the Inn of the Mountain Gods Resort and Casino, a Mescalero
Apache Tribal enterprise, having offices at 287 Carrizo Canyon
Road, Mescalero, New Mexico 88340 ("Employer"), and Daniel A
McCue , an individual currently residing at 2150 Del Rio
Road, Roseburg, OR 97470 ("Employee"), to be effective as of
1st day of September , 20 08 (the "Effective
Date"). WITNESSETH
WHEREAS, Employer desires to employ Employee in the position
set forth on Exhibit "A" and under the terms and conditions set
forth in this Employment Agreement.
WHEREAS, Employee is willing to accept employment with
Employer under the terms and conditions set forth in this
Employment Agreement; and NOW,
THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, Employer and Employee
agree as follows: ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ
Employee, and Employee agrees to be employed by Employer, beginning
as of the Effective Date and continuing until the date set forth on
Exhibit "A" (the "Term"), subject to the terms and conditions of
this Agreement. 1.2 Employee
initially shall be employed in the position set forth on Exhibit
"A." Employer may subsequently assign Employee to a different
position or modify Employee’s duties and responsibilities;
provided however, in the event Employer substantially reduces the
duties or responsibilities of Employee, Employee may elect to
terminate this Agreement pursuant to Article 3 below. Employee
agrees to serve in the assigned position and to perform diligently
and to the best of Employee’s abilities the duties and
services appertaining to such position as determined by Employer,
as well as such additional or different duties and services
appropriate to such position which Employee from time to time may
be reasonably directed to perform by Employer. Employee shall at
all times comply with and be subject to such policies and
procedures as Employer may establish from time to time.
1.3 Employee shall, during the period
of Employee’s employment by Employer, devote Employee’s
full business time, energy, and best efforts to the business and
affairs of Employer and its Enterprises or other entities. Employee
may not engage, directly or indirectly, in any other business,
investment, or activity that interferes with Employee’s
performance of Employee’s duties hereunder, is contrary to
the interests of Employer, or requires any significant portion of
Employee’s business time.
1.4 In connection with
Employee’s employment by Employer, Employer shall endeavor to
provide Employee access to such information pertaining to the
business and services of Employer as is appropriate for
Employee’s employment responsibilities. Employer also shall
endeavor to provide to Employee the opportunity to develop business
relationships with those of Employer’s clients and potential
clients that are appropriate for Employee’s employment
responsibilities. 1.5 Employee
acknowledges and agrees that at all times during the employment
relationship Employee owes fiduciary duties to Employer, including
but not limited to the fiduciary duties of the highest loyalty,
fidelity and allegiance to act at all times in the best interests
of the Employer, to make full disclosure to Employer of all
information that pertains to Employer’s business and
interests, to do no act which would injure Employer’s
business, its interests, or its reputation, and to refrain from
using for Employee’s own benefit or for the benefit of others
any information or opportunities pertaining to Employer’s
business or interests that are entrusted to Employee or that
Employee learned while employed by Employer. Employee acknowledges
and agrees that upon termination of the employment relationship,
Employee shall continue to refrain from using for Employee’s
own benefit or the benefit of others any information or
opportunities pertaining to Employer’s business or interests
that were entrusted to Employee during the employment relationship
or that Employee learned while employed by Employer. Employee
agrees that while employed by Employer and thereafter Employee
shall not knowingly take any action that interferes with the
internal relationships between Employer and its employees or
representatives or interferes with the external relationships
between Employer and third parties.
1.6 It is agreed that any direct or
indirect interest in, connection with, or benefit from any outside
activities, particularly commercial activities, which interest
might in any way adversely affect Employer or any of its
Enterprises or other entities, involves a possible conflict of
interest. In keeping with Employee’s fiduciary duties to
Employer, Employee agrees that during the employment relationship
Employee shall not knowingly become involved in a conflict of
interest with Employer or its affiliates, or upon discovery
thereof, allow such a conflict to continue. Moreover, Employee
agrees that Employee shall disclose to Employer’s Chairperson
or the Chief Operating Officer should such duty be so delegated,
same herein referred to as "Chairperson" any facts that might
involve such a conflict of interest that has not been approved by
Employer’s Chairperson. Employer and Employee recognize that
it is impossible to provide an exhaustive list of actions or
interests that constitute a "conflict of interest." Moreover,
Employer and Employee recognize there are many borderline
situations. In some instances, full disclosure of facts by the
Employee to Employer’s Chairperson or the Chief Operating
Officer should such duty be so delegated, may be all that is
necessary to enable Employer or its affiliates to protect its
interests. In others, if no improper motivation appears to exist
and the interests of Employer or its affiliates have not suffered,
prompt elimination of the outside interest will suffice. In still
others, it may be necessary for Employer to terminate the
employment relationship. Employer and Employee agree that
Employer’s determination as to whether a conflict of interest
exists shall be conclusive. Employer reserves the right to take
such action as, in its judgment, will end the conflict.
1.7 Employee understands and
acknowledges that the terms and conditions of this Agreement
constitute confidential information. Employee shall keep
confidential the terms of this Agreement and shall not disclose
this confidential information to anyone other than as required by
law. Employee acknowledges and understands that disclosure of the
terms of this Agreement constitutes a material breach of this
Agreement and could subject Employee to disciplinary action,
including without limitation, termination of employment. ARTICLE
2: COMPENSATION AND BENEFITS: 2.1
Employee’s monthly base salary during the Term shall be not
less than the amount set forth under the heading "Monthly Base
Salary" on Exhibit "A," subject to increase at the sole discretion
of the Employer , provided however, that Employee shall
receive an annual cost of living increase based on the percentage
specified by Employer for all of Employer’s employees or a
mutually agreeable federal governmental index, which shall be paid
in accordance with Employer’s standard payroll practice. Any
calculation to be made under this Agreement with respect to
Employee’s Monthly Base Salary shall be made using the then
current Monthly Base Salary in effect at the time of the event for
which such calculation is made. 2.2
While employed by Employer, Employee shall be allowed to
participate, on the same basis generally as other employees of
Employer, in all general employee benefit plans and programs,
including improvements or modifications of the same, which on the
effective date or thereafter are made available by Employer to all
or substantially all of Employer’s employees. Such benefits,
plans, and programs may include, without limitation, paid vacation,
paid sick leave, paid holidays, and medical, health, and dental
care, life insurance, disability protection, and pension plans.
Nothing in this Agreement is to be construed or interpreted to
provide greater rights, participation, coverage, or benefits under
such benefit plans or programs than provided to similarly situated
employees pursuant to the terms and conditions of such benefit
plans and programs. 2.3 While
employed by Employer, Employee shall be entitled to reimbursement
for all reasonable expenses, including travel and entertainment,
incurred by Employee in the performance of Employee’s duties.
Where time allows, any such request for expenditure shall be
approved in advance by the Chief Operating Officer. Employee will
maintain records and written receipts as required by the
Employer’s policy and reasonably requested by the Employer to
substantiate such expenses. 2.4
Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or
discontinuing, any such incentive compensation or employee benefit
program or plan, so long as such actions are similarly applicable
to covered employees generally. Moreover, unless specifically
provided for in a written plan document adopted by the Management
Board of the Inn of the Mountain Gods Resort and Casino, none of
the benefits or arrangements described in this Article 2 shall
be secured or funded in any way, and each shall instead constitute
an unfunded and
unsecured promise to pay money in the future exclusively from
the general assets of Employer. 2.5
Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, or other taxes as
may be required pursuant to any law or governmental regulation or
ruling. ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM AND
EFFECTS OF SUCH TERMINATION: 3.1
Notwithstanding any other provisions of this Agreement, Employer
shall have the right to terminate Employee’s employment under
this Agreement at any time prior to the expiration of the Term for
any of the following reasons: (i) For
"cause" upon the determination by the Employer’s Chairperson
that "cause" exists for the termination of the employment
relationship. As used in this Section 3.1 (i), the term
"cause" shall mean [a] Employee’s gross negligence or willful
misconduct in the performance of the duties and services required
of Employee pursuant to this Agreement; [b] Employee has been
convicted of a felony; [c] Employee has willfully refused without
proper legal reason to perform the duties and responsibilities
required of Employee under this Agreement which remains uncorrected
for thirty (30) days following written notice to Employee by
Employer of such breach; [d] Employee’s involvement in a
conflict of interest as referenced in Section 1.6 for which
Employer makes a determination to terminate the employment of
Employee which remains uncorrected for thirty (30) days
following written notice to Employee by Employer of such breach;
[e] Employee has willfully engaged in conduct that Employee knows
or should know is materially injurious to Employer or any of its
respective Enterprises or other entities; [f] Employee’s
material breach of any material provision of this Agreement or
Tribal policy which remains uncorrected for thirty (30) days
following written notice to Employee by Employer of such breach;
[g] Employee violates the Indian Gaming Regulatory Act or other
applicable United States law as proscribed by Section 5.1; or
[h] Employee no longer has a valid Mescalero Apache Tribal Gaming
Commission Gaming License. It is expressly acknowledged and agreed
that the decision as to whether "cause" exists for termination of
the employment relationship by Employer is delegated to the
Employer’s Chairperson for determination. If Employee
disagrees with the decision reached by Employer’s
Chairperson, the dispute will be limited to whether
Employer’s Chairperson reached the decision in good faith;
(ii) for any other reason whatsoever,
with or without cause, in the sole discretion of the Chairperson of
Employer; (iii) upon Employee’s
death; or
(iv) upon Employee’s
becoming disabled so the Employee is permanently and totally unable
to perform Employee’s duties for Employer as a result of any
medically determinable physical or mental impairment as supported
by a written medical opinion to the foregoing effect by a physician
selected by Employer. The termination of Employee’s
employment prior to the expiration of the Term shall constitute a
severance and shall be subject to the terms of Section 3.3
below. 3.2 Notwithstanding any other
provisions of this Agreement except Section 8.6, Employee
shall have the right to terminate the employment relationship under
this Agreement at any time prior to the expiration of the Term of
employment of the following reasons:
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(i)
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a material breach by Employer of any material provision of this
Agreement which remains uncorrected for thirty (30) days
following written notice by Employee of such breach to Employer.
Any such termination shall be subject to the provisions of
Section 3.3 below.
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(ii)
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for any other reason whatsoever, in the sole discretion of
Employee.
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3.3 Upon termination of the
employment relationship by either Employer or Employee prior to the
expiration of the Term, in consideration of the Employees continued
obligations hereunder, after such termination (including without
limitation Employee’s under Article 6, 7 and
Section 8.2 ) to receive the then current monthly base salary,
benefits, allowance continuation as set forth in Exhibit A as
follows:
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(i)
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After employee has been employed for the term of six (6) months,
Employee shall have a severance package of six (6) months
wages in the event of termination of the employment of Employee.
The initial six (6) month period shall not be calculated in
determining severance payable under this subparagraph.
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(ii)
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Same should be paid at the time of normal preparation and
issuance of payroll checks, and same shall be reduced by standard
deductions taken from such severance payments.
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(iii)
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Such severance under the provisions of this section shall be
limited to a total of six (6) months of severance.
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(iv)
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Such severance payment shall terminate should employee violate
the provisions of Article 7 (post employment non-competition
obligations) or Section 8.2 (under miscellaneous). Such
termination of severance for any such violation shall be upon
giving notice to Employee that such severance is being stopped
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and no further payment will be made pursuant to the provisions
of this Section.
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3.4 Upon termination of the
employment relationship as a result of Employee’s death,
Employee’s heirs, administrators, or legatees shall be
entitled to Employee’s pro rata salary through the date of
such termination. 3.5 In all cases,
the compensation and benefits payable to Employee under this
Agreeme
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