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”).
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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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.
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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 twelve
(12) months of severance.
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(
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