EXHIBIT 10.1
------------
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of the
24th day of September, 1996 between Casino America, Inc., a Delaware corporation
(the "Company") and Michael G. Rose ("Employee").
In consideration of the mutual promises of this Agreement, the Company and
Employee agree as follows:
1. Effective Date: This agreement shall be effective as of September 24,
1996.
2. Employment:
(a) Term. The Company hereby employs Employee, and Employee accepts
such employment and agrees to perform services for the Company and/or its
Subsidiaries, for an initial period of three (3) years from and after the
Effective Date of this Agreement (the "Initial Term") and, unless either party
gives written notice to the other party at least one (1) year before the end of
the Initial Term or of any Renewal Term, for successive one-year periods (the
"Renewal Terms"), unless terminated at an earlier date in accordance with
Section 5 of this Agreement (the Initial Term and the Renewal Terms together
referred to as the "Term of Employment").
(b) Service with Company. During the Term of Employment, Employee agrees
to perform reasonable employment duties as the Board of Directors of the Company
and/or its Subsidiaries shall assign to him from time to time. Employee also
agrees to serve, for any period for which he is elected as an officer of the
Company and/or its Subsidiaries; provided, however, that Employee shall not be
entitled to any additional compensation for serving as an officer of the Company
and/or its Subsidiaries. Employee's initial position shall be to serve as Vice-
President of Marketing.
(c) Performance of Duties. Employee agrees to serve the Company and/or
its Subsidiaries faithfully and to the best of his ability and to devote
substantially all of his time, attention and efforts to the business and affairs
of the Company and/or its Subsidiaries during the Term of Employment.
(d) Compensation. During the Term of Employment, the Company and/or its
Subsidiaries shall pay to Employee as compensation for services to be rendered
hereunder an aggregate base salary of $150,000 per year, payable in equal
monthly, or more frequent payments, subject to increases, if any, as may be
determined by the Company's Board of Directors. In addition, Employee will be
eligible to receive an annual bonus beginning on or about June 1997 based upon
his job performance and the performance of the Company, which bonus shall not be
less than $10,000 for the fiscal 1997 year. Employee shall also be eligible to
participate in any stock option plans of the Company and/or its Subsidiaries.
Employee shall initially receive options to purchase a total of 25,000 shares of
the Common Stock of the Company at the fair market price at date of issue. The
options will be vested at the
rate of 5,000 shares per year. In the event of a change in management, take-
over or buyout, all shares shall be fully vested. Employee shall be eligible to
participate in such employee benefit plans or programs of the Company and/or its
Subsidiaries as are or may be made generally available to employees of the
Company or of its Subsidiaries. The Company and/or its Subsidiaries will pay or
reimburse Employee for all reasonable and necessary out-of-pocket expense
incurred by him in moving to Biloxi and in the performance of his duties under
this Agreement, and in accordance with Company policy. If Employee voluntarily
leaves the Company's employment within one (1) year of Employee's Effective
Date, Employee will reimburse the Company for all relocation expenses incurred
by the Company or on behalf of Employee at a pro-rated rate (i.e. if Employee
voluntarily leaves six (6) months after the Effective Date, Employee will
reimburse the Company 50% of all relocation expenses). Employee will be
entitled to three (3) weeks paid vacation.
3. Confidentiality and Non-Competition.
(a) Ownership. Employee agrees that all inventions, copyrightable
material, business and/or technical information and trade secrets which arise
out of the performance of his Agreement are the property of the Company and/or
its Subsidiaries.
(b) Non-Competition. Employee agrees to the following covenant not to
compete beginning on the effective date of this Agreement and continuing until
one year after termination of his employment relationship with the Company:
Employee agrees not to compete, directly or indirectly (including as an
officer, director, partner, employee, consultant, independent contractor, or
more than 5% equity holder of any entity) with the Company or any of its
Subsidiaries in any way concerning the ownership, development or
management of any gaming operation or facility within a 75-mile radius of
any gaming operation or facility with respect to which the Company or any
of its Subsidiaries owns, renders or proposes to render consulting or
management services. The Company fully understands that Employee is a
major owner of a gaming consultant company, which consultant company
holds two gaming management agreements in the State of Oregon. The
Company will not hold Employee bound by the non-competitive provision as
it applies to the two Oregon agreements.
(c) Confidentiality. Except as is consistent with Employee's duties and
responsibilities within the scope of his employment with the Company and/or the
Subsidiaries, Employee agrees not to use or disclose to any unauthorized person
information which is not generally known and which is proprietary to the Company
or any Subsidiary, including all information that the Company or any Subsidiary
treats as confidential, ("Confidential Information"). Upon termination of
Employee's employment, Employee will promptly turn over to the Company all soft
ware, records, manuals, books, forms, documents, notes, letters,
memoranda, reports, data, tables, compositions, articles, devices, apparatus and
other items that disclose, describe or embody Confidential Information including
all copies of the Confidential Information in his possession, regardless of who
prepared them.
4. Remedies. Employee understands that if he fails to fulfill his
obligations under this Agreement, the damages to the Company and/or its
Subsidiaries would be very difficult to determine. Therefore, in addition to any
other rights or remedies available to the Company at law, in equity, or by
statute, Employee hereby consents to the specific enforcement of this Agreement
by the Company through an injunction or restraining order issued by the
appropriate court.
5. Termination.
(a) Grounds for Termination. The Term of Employment set forth in
Section 2(a) shall terminate prior to its expiration in the event that at any
time during such term:
(i) Employee shall die or become disabled as determined in good
faith by the Board of Directors of the Company; or
(ii) The Board of Directors of the Company delivers notice of
termination for "cause" to Employee. For purposes of this
section, "cause" shall mean: (1) Employee's inability to
become qualified by any gaming authority; (2) any
dishonesty, disloyalty or gross misconduct on the part of
Employee in the performance of Employee's duties hereunder;
(3) any breach of Company and/or the Subsidiaries policies
or failure on the part of Employee to perform duties
assigned to Employee by the Company's Board of Directors,
which breach or failure is not remedied by Employee within
30 days after notice thereof is given by the Company to
Employee; or (4) any event or circumstance regarding
Employee which may, in the judgment of the Board of
Directors of the Company, result in (i) the disapproval,
modification, or non-renewal of any contract under which the
Company or any Subsidiary has sole or shared authority to
own, develop, manage or consult with any gaming operations;
or (ii) the loss of non-reinstatement of any license or
franchise from any governmental agency held by the Company
or any Subsidiary to conduct any portion of the business of
the Company or any Subsidiary, which license or franchise is
conditioned upon employees or officers of the Company
meeting certain criteria.
(b) Severance. The Company may terminate the Term of Employment at
any time for any reason. If the Company terminates the Term of Employment (by
either terminating Employee's employment or by giving the notice described in
Section 2(a) to prevent a Renewal Term) without "cause", then, provided that the
Employee signs a General Release in a
form acceptable to the Company that releases the Company and its affiliated
entities from any and all claims that Employee may have against them, Employee
shall be entitled to continue to receive his salary and employee benefits for
twelve months.
6. Miscellaneous.
(a) Successors and Assigns. This Agreement is binding on and inures to
the benefit of the Company's successors and assigns. The Company may assign this
Agreement in connection with a merger, consolidation, assignment, sale or other
disposition of substantially all of its assets or business. This Agreement may
not be assigned by Employee.
(b) Modifications, Waivers. This Agreement may be modified or amended
only by a writing signed by the Company, and Employee. The Company's failure,
or delay in exercising any right, or partial exercise of any right, will not
waive any provision of this Agreement or preclude the Company from otherwise or
further exercising any rights or remedies hereunder, or any other rights or
remedies granted by any law or any related document.
(c) Governing Law and Jurisdiction. The laws of Delaware will govern
the validity, construction, and performance of this Agreement. Any legal
proceeding related to this Agreement will be brought in a Delaware court. Both
the Company and Employee hereby consent to the exclusive jurisdiction of that
court of this purpose.
(d) Captions. The headings in this Agreement are for convenience only
and do not affect the interpretation of this Agreement.
(e) Severability. To the extent any provision of this Agreement shall
be invalid or enforceable with respect to Employee, it shall be considered
deleted herefrom with respect to Employee and the remainder of such provision
and this Agreement shall be unaffected and shall continue in full force and
effect. In furtherance to and not in limitation of the foregoing, should the
duration or geographical extent of, or business activities covered by, any
provision of this Agreement be in excess of that which is valid and enforceable
under applicable law with respect to Employee, then such provision shall be
construed to cover only that duration, extent or activities which are validly
and enforceably covered with respect to Employee. Employee acknowledges the
uncertainty of the law in this respect and expressly stipulates that this
Agreement be given the construction which renders its provisions valid and
enforceable to the maximum extent (not exceeding its expressed terms) possible
under applicable laws.
(f) Entire Agreement. This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writings and understandings
between the parties concerning the matters herein or therein, including without
limitation, any policy or personnel manuals of the Company.
(g) Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and sent by registered first-
class mail, postage prepaid,
and shall be deemed delivered upon hand delivery or upon mailing (postage
prepaid and by registered or certified mail) to the following address:
If to the Company, to:
Casino America, Inc.
711 Washington Loop
Biloxi, MS 39530
If to the Employee, to:
Michael G. Rose
---------------
91 Sailfish Drive
-----------------
Brigantine, NJ 08203
---------------------
These addresses may be changed at any time by like notice.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed in
a manner appropriate for such party as of the date first above written.
CASINO AMERICA, INC.
By:_______________________________________
John M. Gallaway, President
"EMPLOYEE"
__________________________________________
Michael G. Rose