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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: SENECA GAMING CORP | Robert Victoria You are currently viewing:
This Employment Agreement involves

SENECA GAMING CORP | Robert Victoria

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Title: EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 4/16/2007

EMPLOYMENT AGREEMENT, Parties: seneca gaming corp , robert victoria
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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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