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REVISED EXECUTIVE EMPLOYMENT AGREEMENT

Employee Retention Agreement

REVISED EXECUTIVE EMPLOYMENT AGREEMENT | Document Parties: Inn of the Mountain Gods Resort and Casino, You are currently viewing:
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Inn of the Mountain Gods Resort and Casino,

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Title: REVISED EXECUTIVE EMPLOYMENT AGREEMENT
Date: 7/24/2008

REVISED EXECUTIVE EMPLOYMENT AGREEMENT, Parties: inn of the mountain gods resort and casino
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Exhibit 10.4

REVISED 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 Pamela Gallegos, an individual currently residing at (“Employee”), to be effective as of 7 th day of August, 2007 (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:

 

(i)

 

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.

 

 

 

 

 

(ii)

 

for any other reason whatsoever, in the sole discretion of Employee.

     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:

 

(i)

 

Severance shall be calculated at the rate of one month of severance for each full three (3) months of employment under the terms of this agreement or any other prior agreement or Executive Employment Agreement previously executed between Employer and Employee.

 

 

 

 

 

(ii)

 

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.

 

 

 

 

 

(iii)

 

Such severance under the provisions of this section shall be limited to a total of twelve (12) months of severance.

 

 

 

 

 

(


 
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