Exhibit 10.2
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND
RESTATED EMPLOYMENT AGREEMENT (the “ Agreement
”) is made and entered into effective this 7th day of
September 2007 by and between Natalie Schramm (hereinafter referred
to as “ Employee ”) and Peninsula Gaming, LLC, a
Delaware limited liability company (hereinafter referred to as
“ Employer ”).
WHEREAS, the
Employer and the Employee are parties to an Employment Agreement,
dated as of November 29, 2004 (the “ Original
Agreement ”) and desire to enter into this amended and
restated employment agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, in
consideration of the promises made in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties, and intending to be legally
bound hereby, the parties hereby agree that, effective as of
November 29, 2004, the Original Agreement be, and hereby is,
amended and restated in its entirety as set forth below:
1.
TERM OF AGREEMENT . The term of the Agreement shall be
for an initial three (3) year period commencing July 1, 2004
through June 30, 2007 (the “ Initial Term ”) and
shall be renewed for a three (3) year period commencing July 1,
2007 through June 30, 2010 (the “ Renewal Term
”). This Agreement shall automatically renew and
continue for successive one-year terms commencing at the end of the
Renewal Term and every year thereafter, unless either party gives
the other party written notice of the party’s intention not
to renew this Agreement for a further one-year term at least thirty
(30) days prior to the expiration of a term, unless terminated by
agreement of the parties or pursuant to Section 2 of this
Agreement (the Initial Term and the Renewal Term, together with any
subsequent renewal period, hereinafter referred to as the “
Term ”).
2.
TERMINATION . This Agreement may be terminated at any
time before any expiration date by the agreement of the parties,
and may be terminated by Employee at any time upon ninety (90) days
advance written notice to the Chief Executive Officer of the
Employer (the “ CEO ”). In the event that
this Agreement is terminated by Employee pursuant to the
immediately preceding sentence upon ninety (90) advance written
notice, Employee shall be entitled to continue receiving her
regular salary for so long as Employee is permitted to and actually
continues to render services to Employer during such ninety (90)
day period following such notice. If Employee is directed by
Employer to cease work prior to expiration of such ninety (90) day
period, Employee shall nevertheless be entitled to receive her
regular salary for such period. In addition, this Agreement
may be terminated by the Employer immediately upon the occurrence
of any of the following events: (a) Employee’s death,
(b) Employee becoming physically or mentally disabled (a “
Disability ”), which Disability renders Employee
unable to perform, as certified by a mutually agreeable competent
medical physician, a substantial portion of Employee’s duties
hereunder for a continuous period of sixty (60) days or a total of
ninety (90) days in any three hundred sixty-five (365) day period,
(c) Employee’s commission of an act of embezzlement, fraud,
misappropriation against the Employer, (d) Employee’s
conviction of, or entry of a plea of guilty or nolo
contendere or its equivalent of, a felony,
(e) Employee’s continued neglect or failure to discharge
Employee’s duties or responsibilities or the repeated taking
of any action prohibited by Employee’s immediate supervisor,
the managing member or
the board of managers
of the Employer materially affecting the fundamental operating
results of the Employer, or Employee’s engagement of conduct
injurious to the Employer or having an adverse effect on the
Employer’s reputation or business operations, all of which
threatens or is likely to threaten the licensed status of the
Employee or the Employer, (f) the revocation, suspension for more
than thirty (30) days, or voluntary relinquishment of any gaming
license necessary for the performance of Employee’s duties
hereunder or (g) Employee’s breach or violation of any
material term or material provision of this Agreement ( clauses
(a) through (g) collectively, “ Cause
”); provided , however , that in the case of
clauses (e) , (f) and (g) of this Section
2 , Employee shall be entitled to thirty (30) days notice of
termination, during which thirty (30) day period Employee shall
have the right to remedy any such breach or default, but in no
event will Employee be entitled to more than one thirty (30) day
notice for breach of violation of the same offense; subsequent
commission of the same offense shall warrant immediate
termination. In the event of a termination of this Agreement
by Employer, other than for Cause or upon a Change of Control (as
defined below), during any Term of this Agreement, Employee shall
be entitled to receive as severance pay the greater of (a) the
balance of base compensation due to Employee for the remainder of
the Term or (b) twelve month’s compensation, which payments
shall be made as they would otherwise have become due under the
payroll schedule of Employer. Under such circumstances,
Employee shall also be entitled to receive a prorated share of the
cash bonus to which Employee otherwise would be entitled had
Employee’s employment continued to the end of the Term, as
provided in Section 4(a) . In addition, the employee
shall also be entitled to receive the immediate payment for the
value of all Granted Units previously vested, as described in
Section 4(b) below.
3.
DUTIES . Employee shall carry out the duties and
responsibilities generally as identified as the Chief Financial
Officer of the Employer. Employer acknowledges and agrees
that Employee, in her sole discretion, shall set the time period,
number of hours and location that Employee works in carrying out
her duties under this Agreement. Employer further
acknowledges and agrees that Employee may provide consulting and
other services to third parties, provided that such services
do not significantly interfere with the performance of
Employee’s duties under this Agreement, and further
provided that such services would not result in a breach by
Employee of Section 7 of this Agreement.
4.
COMPENSATION AND BENEFITS .
a.
Employee shall be paid by Employer (i) as compensation for her
services for the twelve month period commencing on the date hereof,
the base annual salary of Two Hundred Fifty-Three Thousand Seven
Hundred and Fifty-Five Dollars ($253,755). Employee’s
base annual salary shall be reviewed on January 1st of each year of
service and adjusted upward annually by not less than five percent
(5%) of the prior year’s compensation. In addition to
the base salary, upon January 1st of each year of service with the
Employer, Employee shall be entitled to receive a cash bonus
payable by the Employer based on Employee’s performance
during the previous calendar year, which shall be consistent with
past practices and/or the bonus plan in place for similarly sit
