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Exhibit 10.2 EXECUTIVE EMPLOYMENT AGREEMENT This
Executive Employment Agreement (this " Agreement ") is
entered into, to be effective as of January 8, 2009 (the "
Effective Date "), between Black Gaming, LLC, a Nevada
limited liability company (the " Company ") and Anthony Toti
(the " Executive "). The Company and the Executive are
individually a " Party " and collectively, the "
Parties ." Preliminary Statements A. The Executive is
an employee of the Company and has been such since
October 2007. B. Subject to the terms and conditions set
forth herein, the Company desires to continue to employ the
Executive and to enter into this Agreement embodying the existing
terms of such employment, and the Executive desires to enter into
this Agreement and accept such employment. Agreement In
consideration of the mutual covenants and for other good and
valuable consideration, the Parties hereto agree as follows:
1. Definitions . In addition to certain terms defined
elsewhere in this Agreement, the following terms shall have the
following respective meanings: 1.1 " Affiliate " shall mean
any Person who controls, is controlled by, or is under common
control with the Company. 1.2 " Approvals " shall have the
mean provided in Section 9.13 . 1.3 " Business
Day " shall mean any day other than a weekend, a federal or
Nevada state holiday or a vacation day for the Executive. 1.4 "
Cause " shall mean: (a) the indictment of the Executive
by a state or federal grand jury of competent jurisdiction or the
filing of a criminal complaint or information, for a felony or any
other offense involving embezzlement or misappropriation of funds,
or any act of moral turpitude, dishonesty or lack of fidelity;
(b) the conviction of, or judgment against, the Executive by a
civil or criminal court of competent jurisdiction for a felony or
any other offense involving embezzlement or misappropriation of
funds, or any act of moral turpitude, dishonesty or lack of
fidelity;
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(c) the denial, revocation or suspension of a license,
qualification or the suitability of the Executive by the Gaming
Authorities, whose consent, approval, license, waiver, order,
determination of suitability or other authorization that is
required in connection with the operation of the Company or its
Affiliates; (d) the Executive has engaged in misconduct,
failed to follow a reasonable directive, including any reasonable
directive given by the Company, or engaged in material inattention
to the Company’s business; (e) the Executive has
materially breached the terms of this Agreement; (f) the
Executive has engaged in acts or omissions that constitute gross
negligence or willful misconduct resulting, in either case, in
material economic harm to the Company; or (g) the Executive
has engaged in excessive absenteeism. 1.5 " Company Property
" shall mean all items and materials that are created, compiled,
existing, or received by the Company during the course of the
Executive’s employment with the Company, all items and
materials provided by the Company to the Executive, or to which the
Executive has access, in the course of his employment, including,
without limitation, all files, records, documents, drawings,
specifications, memoranda, notes, reports, manuals, equipment,
computer disks, videotapes, drawings, blueprints, other similar
items relating to or emanating from the Company, its Affiliates or
their respective customers, whether prepared by the Executive or
others, and any and all copies, abstracts and summaries thereof.
1.6 " Confidential Information " shall mean all nonpublic
and/or proprietary information (in whatever form, including,
without limitation, information that is written, electronically
stored, orally transmitted or memorized) relating to the business
of the Company or any Affiliate or that is created, discovered,
developed, or otherwise becomes known to the Company, including,
without limitation, its patrons, customer lists, products,
programs, projects, promotions, marketing plans and strategies,
business plans or practices, business operations, employees,
invitees, research and development products or information,
intellectual property, software, databases, pricing information and
accounting and financing data. Confidential Information shall
include such information whether furnished before or after the
Effective Date, and shall include information concerning the
Company’s or any Affiliate’s customers, such as their
identity, address, preferences, playing patterns and ratings or any
other information kept by the Company or any Affiliate concerning
its customers regardless of whether such information has been
reduced to documentary or tangible form. Confidential Information
does not include information that is, or becomes, available to the
general public unless such availability occurs through an
unauthorized act on the part of the Executive.
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1.7 " Disability " shall mean a physical or mental
incapacity that occurs during the Term that prevents the Executive
from performing, with reasonable accommodation, the essential
functions of his position with the Company for a minimum period of
90 days. In the Event of Disability, the Executive hereby
agrees to submit to medical examinations by a licensed healthcare
professional selected by the Company, in its sole discretion, to
determine whether a Disability exists. In addition, the Executive
may submit to the Company documentation of a Disability, or lack
thereof, from a licensed healthcare professional of his choice.
Following a determination of a Disability or lack of Disability by
the Company’s or the Executive’s licensed healthcare
professional, the other Party may submit subsequent documentation
relating to the existence of a Disability from a licensed
healthcare professional selected by such other Party. In the event
that the medical opinions of such licensed healthcare professionals
conflict, such licensed healthcare professionals shall appoint a
third licensed healthcare professional to examine the Executive,
and the opinion of such third licensed healthcare professional
shall be dispositive. 1.8 " Gaming Authorities " shall mean
the state and local governmental, regulatory and administrative
authorities, agencies, boards and officials responsible for or
involved in the regulation of gaming, gaming activities or the
operations of the Company in any jurisdiction and, within the State
of Nevada, specifically, the Nevada Gaming Commission and the
Nevada State Gaming Control Board. 1.9 " Indemnifiable
Action " shall have the meaning provided in
Section 8 . 1.10 " Person " shall mean a natural
person, any form of business and any other non-governmental legal
entity including, but not limited to, a corporation, partnership,
trust, or limited liability company. 1.11 " Salary " shall
have the meaning provided in Section 4.1 . 1.12 "
Term " shall have the meaning provided in
Section 2.2 . 1.13 " Termination Without Cause "
shall have the meaning provided in Section 5.3 . 1.14 "
Voluntary Termination " shall have the meaning provided in
Section 5.4 . 2. Term . 2.1 Employment.
The Company hereby employs the Executive, and the Executive hereby
accepts employment with the Company, in the position and with the
duties and responsibilities as set forth in Section 3
for the Term, subject to the terms and conditions of this
Agreement. 2.2 Term . The initial term (" Term ")
shall commence as of the Effective Date and shall terminate, unless
sooner terminated as provided in Section 5 , at
11:59 p.m. (Pacific Standard Time), on December 31, 2009;
provided that the Term shall automatically renew for successive one
year periods unless: (i) it has sooner terminated as provided
in Section 5 ; or (ii) either Party has notified
the other in writing at least 30 days prior to the otherwise
scheduled expiration of the Term that such Term shall not so
renew.
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3. Position . During the Term, the Executive shall
be employed as Chief Operating Officer of the Company with the
duties, responsibilities and authorities customarily associated
with such position for other businesses of the same size and
industry, together with any other duties as may be reasonably
requested by the Company from time to time, which may include
duties for one or more Affiliates of the Company. In performing the
Executive’s duties under this Agreement, the Executive shall
perform such duties subject to supervision and in accordance with
the written policies and directives established by the Company. 4.
Compensation and Benefits . 4.1 Salary . During the
Term, the Company shall pay the Executive an annualized rate of Two
Hundred and Fifty Thousand Dollars ($250,000) (the " Salary
"), which shall accrue in equal bi-weekly installments in arrears
and shall be payable in accordance with the payroll practices of
the Company in effect from time to time. 4.2 Annual Bonus .
If the Executive is employed by the Company as of December 31,
the Company shall pay the Executive a bonus of $50,000; if the
Executive is terminated prior to such date for any reason or if
such Employee terminates this Agreement prior to such date, the
Executive shall have no right to receive any portion of such
amount. 4.3 Reimbursement . During the Term, the Executive
shall be entitled to receive reimbursement by the Company, upon
submission of adequate documentation, for all reasonable
out-of-pocket expenses incurred by the Executive in performing
services under this Agreement. 4.4 Pension and Welfare Benefit
Plans and Other Plans . Beginning on the Effective Date, the
Executive shall be entitled to participate in all employee benefit
programs and plans, consistent with the terms of such programs and
plans, made available to the Company’s executives or salaried
employees generally, as such programs may be in effect from time to
time. 4.5 Other Perquisites . During the Term, the Executive
also shall be entitled to any of the Company’s executive
perquisites in accordance with the terms and provisions of the
applicable policies. The Executive shall be entitled to participate
in all PTO and vacation programs, consistent with the terms of such
programs, made available to the Company’s executives or
salaried employees generally, as such programs may be in effect
from time to time. 4.6 Withholding and Other Deductions .
All compensation payable to the Executive hereunder shall be
subject to all such deductions as the Company is from time to time
required to make pursuant to law, governmental regulation or order.
5. Termination of Employment . 5.1 Termination Due to
Death or Disability . (a) In the event of the cessation of
the Executive’s employment under this Agreement due to death
or Disability of the Executive, the Executive or the
Executive’s legal representatives, as the case may be, shall
be entitled to: (i) (A) in the case of death, the earned
and unpaid Salary as of the date of the death, or (B) in the case
of Disability, Salary at the rate in effect at the determination of
Disability through the date of such determination of
Disability;
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(ii) reimbursement for expenses incurred but not yet
reimbursed by the Company; and (iii) any other compensation
and benefits to which the Executive or legal representatives may be
entitled to under the applicable plans, programs and agreements of
the Company. 5.2 Termination by the Company for Cause .
(a) The Company may terminate the Executive’s employment
for Cause at any time during the Term by giving written notice to
the Executive of the Company’s intention to terminate his
employment for Cause; such termination shall be effective as of the
date of such notice to the Executive. In the event the
Executive&
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