E
xhibit 10.1
EXECUTION COPY
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement” ) is dated as of this 10th
day of April, 2007, by and between the Seneca Gaming Corporation
(“ Parent ”), a governmental instrumentality of
the Seneca Nation of Indians of New York (the “ Nation
”) and Robert Victoria (“ Executive
”).
WHEREAS, Parent desires that
Executive serve as the Senior Vice President of Marketing of Parent
and each of the Seneca Niagara Falls Gaming Corporation (“
SNFGC ”), the Seneca Territory Gaming Corporation
(“ STGC ”), and the Seneca Erie Gaming
Corporation (“ SEGC ”), each a wholly-owned
subsidiary of Parent and a governmental instrumentality of the
Nation (collectively, the “ Subsidiaries ” and
together with Parent, “ Employer ”);
and
WHEREAS, Executive desires to serve
as Senior Vice President of Marketing of Employer in accordance
with the terms and conditions of this Agreement.
IT IS HEREBY AGREED AS
FOLLOWS:
1.
Employment . Employer hereby employs Executive as its Senior
Vice President of Marketing. Executive shall report and be
accountable to and work under the authority of the President and
Chief Executive Officer and the Board of Directors of Parent (the
“ Board
”).
Executive shall perform such duties and have such responsibilities
that are customary for such position and including those that may
be specified from time to time by the President and Chief Executive
Officer and/or the Board that are not inconsistent with such
position.
2.
Term . The term of this Agreement shall commence
on March 5, 2007
(the
“ Commencement
Date ”) and terminate
on September 30, 2009
(the
“ Termination
Date ”), unless renewed by
a subsequent written agreement of the parties.
3.
Compensation .
(a)
Executive shall
be paid an annual base salary (“ Base Compensation ”) of Three Hundred
Twenty-Five Thousand Dollars ($325,000) for Employer’s fiscal
year ending September 30, 2007. Employer shall review said
salary on an annual basis (prior to or in connection with the close
of its fiscal year) at which time Employer shall determine in its
sole discretion whether or not said salary shall be increased and
the timing thereof. Said salary shall be payable in periodic
payments in accordance with Employer’s regular payroll
practices.
(b)
Executive shall
be provided with coverage under Employer’s employee benefit
insurance programs and retirement programs, if any, at least equal
to the coverage provided to other senior executive officers of
Employer.
(c)
Executive shall
also be eligible to receive performance or incentive compensation,
which is approved by the Board in its sole discretion. Said
additional performance or incentive compensation, if any, shall be
in addition to and shall not lessen or reduce the Base
Compensation.
(d)
Should Executive
become unable to perform the duties required under this Agreement
as a result of temporary, documented medical disability, he shall
be eligible to continue to receive his Base Compensation for a
period of up to one hundred and eighty (180) days.
4.
Licensing Issues . Executive represents and warrants
to Employer that he shall maintain in good standing such licenses
as may be required pursuant to the Nation-State Gaming Compact
between the Nation and the State of New York (the
“Compact”) and/or the Nation’s or
Employer’s gaming ordinances as in effect on the date hereof,
as may be necessary to enable him to engage in his employment
hereunder.
5.
Termination .
(a)
Executive’s
employment hereunder may be terminated by Parent only under the
following circumstances and such termination by Parent shall be a
termination with respect to Parent and each of the Subsidiaries,
unless otherwise determined by the Board:
(i)
upon revocation
or disapproval of the license required pursuant to the Compact, or
upon disapproval by the National Indian Gaming Commission of the
issuance of any license by the Nation pursuant to its own gaming
ordinances, if either such action renders it unlawful for Executive
to perform as Senior Vice President of Marketing of Parent or any
of the Subsidiaries, or if any event renders it unlawful for the
Nation and/or Employer to continue to conduct casino gaming on
Nation Territory. For purposes of this Agreement,
“Nation Territory” shall include current or future
Nation territory where Employer conducts or will conduct its gaming
operations as of the date Executive’s employment is
terminated.
(ii)
upon revocation
or disapproval of such licenses for Executive as are required
pursuant to the Compact and/or by the Nation’s or
Employer’s gaming ordinances;
(iii)
Executive shall
commit an act constituting “Cause,” which is defined to
mean an act of dishonesty by Executive intended to result in gain
or personal enrichment of Executive or others at Employer’s
expense, or the deliberate and intentional refusal by Executive
(except by reason of disability) to perform his duties hereunder,
or by acts constituting gross negligence in the performance of such
duties, or the failure to perform any material term or condition of
this Agreement after written notice thereof from Company and a
reasonable opportunity to cure such failure (as determined by
Company and specified in the notice of breach); or
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(iv)
Executive shall
die or Employer shall for any reason within Employer’s or the
Nation’s control permanently cease to conduct casino gaming
on Nation Territory.
(b)
If
Executive’s employment should be terminated under Section
5(a) above (or any subsection) then Employer shall at that time pay
Executive (or his estate, as applicable) Base Compensation earned
through the date Executive is terminated, whereupon Employer shall
have no further liability or obligation to Executive under this
Agreement or otherwise.
(c)
If
Executive’s employment should be terminated by Parent for any
reason other than those specified in Section 5(a) above (it being
understood that a purported termination for Cause which is
contested by Executive and finally determined not to have been
proper shall be treated as a termination under this Section 5(c)),
then Employer shall: (i) pay Executive his Base Compensation
earned, but unpaid, through the date Executive is terminated,
(ii) continue to pay Executive his Base Compensation in
effect as of the date of termination for a period following his
termination (the “Severance Period”) equal to the
lesser of (A) twelve (12) months or (B) the remainder of the period
ending on the Termination Date, and (iii) to the extent elected by
Executive, pay for the cost of (A) Executive’s premiums
for continuation healthcare coverage under Section 4980B of the
Internal Revenue Code of 1986, as amended (“COBRA”),
and (B) the premiums for Exec-u-Care® or any similar
executive medical reimbursement insurance plan maintained by
Employer on the date Executive’s employment is terminated,
for the lesser of (1) the Severance Period, (2) until
Executive is no longer eligible for COBRA continuation coverage, or
(3) until Executive obtains comparable healthcare benefits
from any other employer during the Severance Period, whereupon
Employer shall have no further liability or obligation to Executive
under this Agreement or otherwise; provided , however
, that Executive shall have a duty to mitigate damages as follows:
during the Severance Period, Executive shall endeavor to mitigate
damages by seeking employment with duties and salary comparable to
those provided for herein, and if he shall obtain such employment,
he shall reimburse Employer the amount of the compensation he has
received from such other entity for such period, but not to exceed
the amount of the compensation Employer shall have paid him for
such period.
(d)
Executive may
terminate his employment for any reason upon one-hundred-twenty
(120) days written notice to Parent. If Executive terminates
his employment pursuant to this paragraph 5(d), Employer shall pay
Executive the Base Compensation earned through the date of
termination, whereupon Employer shall have no further liability or
obligation to Executive under this Agreement or
otherwise.
(e)
Executive
acknowledges and agrees that the payments set forth in this section
5 constitute liquidated damages for termination of his employment
during the employment term and such liquidated damages shall be his
only remedy with respect to any claim, including, without
limitation, breach of contact, he may have
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under this
Agreement and that prior to receiving any such payments under
Section 5 and as a material condition thereof, Executive shall sign
and agree to be bound by a general release of claims against
Employer related to Executive’s employment (and termination
of employment) with Employer in substantially the form as attached
hereto as Exhibit A as may be modified by Employer in good
faith to reflect changes in law or its employment practices.
Notwithstanding any other provision of this Agreement to the
contrary, Executive acknowledges and agrees that other than any
claim for the liquidated damages contemplated hereunder, he waives
any rights to be awarded any other damages with respect to any
claim he may have under this Agreement, including, without
limitation, compensatory or punitive damages.
6.
Restrictive Covenants .
(a)
Executive acknowledges that:
(i) as a result of Executive’s employment with
Employer, he will obtain secret, proprietary and confidential
information concerning the business of Employer, including, without
limitation, business and marketing plans, strategies, employee
lists, patron lists, operating procedures, business relationships
(including persons, corporations or other entities performing
services on behalf of or otherwise engaged in business transactions
with Employer), accounts, financial data, know-how, computer
software and related documentation, trade secrets, processes,
policies and/or personnel, and other information relating to
Employer ( “Confidential Information” ); (ii)
the Confidential Information has been developed and created by
Employer at substantial expense and the Confidential Information
constitutes valuable proprietary assets and Employer will suffer
substantial damage and irreparable harm which will be difficult to
compute if, during the Restricted Period, Executive should enter a
Competitive Business (as defined herein) in violation of the
provisions of this Agreement; (iii) Employer will suffer
substantial damage which will be difficult to compute if, during
the Restricted Period, Executive should solicit or interfere with
Employer’s employees or patrons, or should divulge
Confidential Information relating to the business of Employer; (iv)
the provisions of this Section 6 are reasonable and necessary for
the protection of the business of Employer; (v) Employer would not
have hired or employed Executive unless he signed this Agreement;
and (vi) the provisions of this Agreement will not preclude
Executive from other gainful employment.
“Competitive Business” shall mean any gaming
establishment which provides to its patrons games of chance such as
slot machines, card games, roulette, and similar games in the State
of New York or within the 100 mile radius of Nation
Territory.
(b)
Executive acknowledges and agrees
that the unauthorized disclosure or misuse of Confidential
Information will cause substantial damage to Employer.
Therefore, Executive agrees not to, at any time, either during the
term of the Agreement or thereafter, divulge, use, publish or in
any other manner reveal, directly or indirectly, to any person,
firm or corporation any Confidential Information obtained or
learned by Executive during the course of his employment with
Employer, with regard to the operational, financial, business or
other affairs and
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activities of Employer, their
officers, directors or employees and the entities with which they
have business relationships, except (i) as may be necessary to the
performance of Executive’s duties with Employer, (ii) with
Parent’s express written consent, (iii) to the extent that
any such information is in the public domain other than as a result
of Executive’s breach of any of obligations hereunder, or
(iv) where required to be disclosed by court order, subpoena or
other government process and, in such event, Executive shall
cooperate with Employer in attempting to keep such information
confidential.
(c)
During Executive’s employment
with Employer and for twelve (12) months after his termination of
employment for any reason (the “Restricted
Period” ), Executive, without the prior written
permission of Parent, shall not, directly or indirectly, (i) enter
into the employ of or render any services to any person, engaged in
a Competitive Business; or (ii) become associated with or
interested in any Competitive Business as an individual, partner,
shareholder, member, creditor, director, officer, principal, agent,
employee, trustee, consultant, advisor or in any other relationship
or capacity. This paragraph 6(c) shall not prevent
Executive from owning common stock in a publicly traded corporation
which owns or manages a casino provided Executive does not take an
active role in the ownership or management of such corporation and
his ownership interest represents less than 3% of the voting
securities and/or economic value of such corporation.
(d)
By executing this Agreement,
Executive acknowledges that he understands that Employer’s
ability to operate its business depends upon its ability to attract
and retain skilled people and that Employer has and will continue
to invest substantial resources in training such individuals.
Therefore, during the Restricted Period, Executive shall not,
without the prior written permission of Parent, directly or
indirectly solicit, employ or retain, or have or cause any other
person or entity to solicit, employ or retain, any person who is
employed or is providing personal services to Employer.
(e)
By executing this
Agreement, Employee acknowledges that Executive understands that
Employer’s ability to operate its business depends upon its
ability to attract and retain vendors and patrons. Therefore,
during the Restricted Period, Executive shall not, directly or
indirectly, solicit, contact, interfere with, or endeavor to entice
away from Employer any of its current or potential patrons or any
such persons or entities that were patrons of Employer within the
one year period immediately prior to Executive’s termination
of employment. Executive further agrees that, during the
Restricted Period, Executive shall not, directly or indirectly,
endeavor to entice away from Employer any of its current or
potential vendors or any such persons or entities that were vendors
of Employer within the one year period immediately prior to
Employee’s termination of employment.
(f)
Executive acknowled
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