Exhibit 10.1
SEPARATION
AGREEMENT
THIS AGREEMENT
(this “Agreement”), made and entered into as of this
8th day of April, 2008 to be effective as of April 11, 2008 (the
“Termination Date”), by and between the Seneca Gaming
Corporation (“Parent”), a wholly-owned governmental
instrumentality of the Seneca Nation of Indians (the
“Nation”) and Patrick M. Fox
(“Executive”),
W I T N E S S E T H :
WHEREAS, Executive
and Parent entered into that certain Employment Agreement,
effective as of June 22, 2006 (the “Employment
Agreement”), pursuant to which Executive served initially as
the Vice President of Finance, and later as the Chief Financial
Officer, of Parent; and
WHEREAS, Executive
also serves as the Chief Financial Officer of each of
Parent’s wholly-owned subsidiaries: Seneca Niagara
Falls Gaming Corporation, Seneca Territory Gaming Corporation,
Seneca Erie Gaming Corporation and Lewiston Golf Course Corporation
(collectively, the “Subsidiaries” and together with
Parent, “Employer”); and
WHEREAS, Executive
has elected to resign as an employee and officer of Parent and each
of the Subsidiaries effective as of the Termination
Date.
NOW, THEREFORE,
for and in consideration of the mutual covenants and obligations
contained herein, Parent and Executive hereby agree as
follows:
ARTICLE I:
RESIGNATION AND POST-TERMINATION COOPERATION
Section 1.1
Resignation . Executive hereby resigns as
an employee and officer of Parent and the Subsidiaries effective as
of the close of business on the Termination Date. Except as
specifically provided in Article III of this Agreement,
notwithstanding any other written or oral agreements between
Employer and Executive relating to Executive’s employment or
termination thereof, and all subsequent amendments thereto,
including, without limitation, the Employment Agreement, such
resignation shall not be deemed to be a breach by Executive or
Employer of any such agreements, and in consideration of the
payments and benefits herein described, any and all terms set forth
in such agreements, including, without limitation, the Employment
Agreement, shall terminate and cease to have any effect as of the
Termination Date notwithstanding any survival clauses therein
contained. Executive agrees to execute all other necessary
documents that Employer requests that he execute to evidence his
termination of employment and his status as an employee and officer
of Employer. Executive represents, understands and agrees
that following the Termination Date, he will not, at any time,
apply for, seek, or accept any employment with, and waives any
right to employment with, Employer.
Section 1.2
Post-Termination Cooperation . Following
the Termination Date, Executive agrees to reasonably cooperate with
Employer, as and when reasonably requested, for
purposes of
facilitating Employer’s transitioning of matters in which
Executive was engaged or for which Executive was responsible as an
employee of Employer. Executive shall have no power to bind
Employer in contractual or other matters, and shall not hold
himself out as having such authority.
ARTICLE II:
SEPARATION PAYMENTS, BENEFITS AND FEES
Section 2.1
Separation Payments . Upon execution and
delivery of this Agreement by the parties, and consistent with
customary policies of Parent, to the extent not previously paid,
the Company shall pay Executive: (a) all unpaid base
compensation payable under Section 3.A. of Executive’s
Employment Agreement for the period prior to the Termination Date;
(b) an amount equal to one hundred eighty (180) days of
additional base compensation at the rate described in
Section 3.A. of Executive’s Employment Agreement,
payable in a lump sum, and (c) any unpaid reasonable business
expenses incurred through the Termination Date. Parent
further agrees to reimburse Executive for reasonable costs and
expenses incurred by Executive: (x) in connection with
Executive’s relocation from Niagara Falls, NY to the Chicago,
IL metropolitan area and (y) at Parent’s direction in
connection with Executive’s efforts pursuant to
Section 1.2 above, subject in each case to Parent’s
receipt of adequate documentation thereof and compliance with
Parent’s applicable policies and procedures.
Section 2.2
Benefits . Subsequent to the close of
business on the Termination Date, Executive shall cease to be
eligible to participate in all Employer employee benefit plans,
provided that, for the period commencing on the Termination Date
and ending on the earlier of (a) the date one hundred eighty
(180) days following the Termination Date, or (b) the date on
which Executive is eligible to receive employer health insurance
coverage through a new employer, Employer will pay the cost of
(1) Executive’s premiums for continuation healthcare
coverage under Section 4980B of the Internal Revenue Code of
1986, as amended (COBRA) and (2) reimbursement under
Exec-u-Care® consistent with Executive’s participation
in Exec-u-Care® prior to the Termination Date.
Section 2.3
Withholding of Taxes . Parent may withhold
from any benefits or compensation payable under this Agreement all
federal, state, city or other taxes as may be required pursuant to
any law or governmental regulation or ruling.
Section 2.4
No Other Payments . Except as specifically
provided in this Agreement or as otherwise may be required by law,
Executive acknowledges and agrees that he shall not be entitled to
receive any other payments, salary, bonus, pension, medical, life,
disability insurance or any other benefits, incentive compensation,
or severance or separation pay or any other claim or compensation
or benefits of any kind or nature whatsoever that Executive may now
have or ever claimed to have been entitled to from Employer or any
affiliate. Executive’s participation in any other
employee benefit plan maintained by Employer or any affiliate shall
terminate effective as of the Termination Date in accordance with
the terms of such employee benefit plans and applicable law.
Except as specifically set forth herein, Executive acknowledges and
agrees that as of the Termination Date, his rights under the
Employment Agreement shall be void and cease to have any effect and
this Agreement shall provide the sole right Executive may have upon
termination of his employment.
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ARTICLE
III:
RESTRICTIVE COVENANTS
Section 3.1
Acknowledgements . Executive acknowledges
that: (i) as a result of Executive’s
employment with Employer, he obtained 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 the Employer), accounts, financial data,
know-how, computer software and related documentation, trade
secrets, processes, policies and/or personnel, and other
information relating to the Employer (“Confidential
Information”); (ii) the Confidential Information has
been developed and created by Employer at substantial expense and
the Confidential Information constitutes a valuable proprietary
asset and that 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 Article III are reasonable and necessary for the
protection of the business of Employer; (v) Employer would not
have entered into this Agreement unless Executive made the
acknowledgements set forth in this Section; and (vi) the
provisions of this Agreement will not preclude Executive from other
gainful employment. For purposes of this Agreement,
“Competitive Business” means 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 a 100 mile radius of Nation Territory. For
purposes of this Agreement, “Nation Territory” means,
collectively, the Seneca Nation of Indians’ Allegany,
Cattaraugus, Oil Springs, Niagara Falls, and Buffalo Creek
Territories.
Section 3.2
Confidentiality . Executive acknowledges
and agrees that the unauthorized disclosure or misuse of
Confidential Information will cause substantial damage to the
Employer. Therefore, Executive agrees not to, at any time,
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 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 Employer’s express prior 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 his 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 the Employer in attempting to keep such information
confidential.
Section 3.3
Non-Compete . For the period commencing on
the Termination Date and ending twelve (12) months thereafter (the
“Restricted Period”), Executive, without the prior
written permission of Parent, shall not, directly or indirectly,
(i) enter into the employ of or
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render any services to
any person or entity engaged in or preparing to engage in a
Competitive Business; or (ii) become affiliated with or
interested in any Competitive Business as an individual, partner,
shareholder, member, creditor, director, officer, principal, agent,
employee, trustee, consultant, or advisor, or in any other
relationship or capacity. This section 3.3 shall not prevent
Executive from owning common stock in a publicly traded corporation
which owns or manages a casino, provided that 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.
Section 3.4
Non-Solicitation – Employees . 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 w
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