Exhibit 10.22
FORM FOR EXISTING EMPLOYEES
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into this 1/st/
day of January, 2002 between Isle of Capri Casinos, Inc., a Delaware corporation
(the "Company") and John M. Gallaway ("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 the date hereof
and replaces the employment agreement currently in place between the "Company"
and the "Employee".
2. Employment.
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(a) Term. The Company hereby employs Employee, and Employee accepts such
employment and agrees to perform services for the Company and/or its
subsidiaries, (hereinafter collectively referred to as the "Company") for an
initial period of one (1) year from and after the Effective Date of this
Agreement (the "Initial Term") and for successive one-year periods (the "Renewal
Terms"), unless terminated at an earlier date in accordance with Section 3 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
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; provided, however,
that Employee shall not be entitled to any additional compensation for serving
as an officer of the Company. From and after the Effective Date, Employee shall
continue to be an executive officer of the Company with the title of President
and Chief Operating Officer.
(c) Performance of Duties. Employee agrees to serve the Company
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 during
the Term of Employment.
(d) Compensation. During the Term of Employment, the Company shall pay
to Employee as compensation for services to be rendered hereunder an aggregate
base salary of $500,000 per year, payable in equal monthly, or more frequent
payments, subject to increases, if any, as may be determined by the Company.
Employee shall also be eligible to participate in any stock option plans of the
Company. In addition to the base salary, any bonuses, and participation in stock
option plans, Employee shall be eligible to participate in any
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employee benefit plans or programs of the Company as are or may be made
generally available to employees of the Company and those made available to
officers of the Company. The Company will pay or reimburse Employee for all
reasonable and necessary out-of-pocket expense incurred by him in the
performance of his duties under this Agreement, subject to the presentment of
appropriate vouchers in accordance with the Company's policies for expense
verification.
3. Termination.
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(a) The Term of Employment shall terminate prior to its expiration in
the event that at any time during such term:
(i) The Company delivers a notice of termination for "cause to
Employee". For purposes of this section, "cause" shall mean
any dishonesty, disloyalty, material breach of corporate
policies, gross misconduct on the part of Employee in the
performance of Employee's duties hereunder or a violation of
Section 5 of this agreement. If Employee is terminated for
cause, there shall be no severance paid to Employee and his
benefits shall terminate, except as may be provided by law.
(ii) The Company for any other reason terminates the Term of
Employment. If Employee signs a General Release in a form
acceptable to the Company that releases the Company from any
and all claims that Employee may have and affirmatively
agrees not to violate any of the provisions of Section 5
hereof, Employee shall be entitled to continue to receive his
salary and, to the extent legally permissible continue to
participate in the employee benefit programs for a period of
24 months from and after such termination or until new
employment begins, which ever occurs first. If Employee fails
to sign the form, Employee shall not be entitled to any
continuing payments or benefits. In lieu of monthly payments,
a lump sum award may be authorized by the Board of Directors.
Employee shall be provided out-placement service with an
out-placement firm or service selected by the Company and at
the reasonable expense of the Company.
(iii) Employee for any reason voluntarily terminates the Term of
Employment. In said event, Employee shall not be entitled to
any compensation and his benefits shall terminate, except as
may be provided by law, from and after termination.
(iv) However, if Employee voluntarily terminates the Term of
Employment due to Retirement all stock options shall become
fully vested and exercisable and the Employee's deferred
bonus payments shall be fully vested and paid. The term
"Retirement"
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shall mean the termination by Employee of his employment by
reason of reaching the age of 65 or such later date approved
by the Board of Directors.
(v) Employee dies or becomes disabled as determined in good faith
by the Board of Directors. Employee, or his estate, shall
continue to receive his salary and, to the extent legally
permissible continue to participate in the employee benefit
programs for a period of 24 months from and after such
termination or until new employment begins, which ever occurs
first. In lieu of monthly payments, a lump sum award may be
authorized by the Board of Directors. Employee shall also be
entitled to a lump sum payment equal to the average of the
last 3 years bonus payment inclusive of deferred amounts.
(b) Except as provided above, the vesting of stock options and deferred
bonus payments shall be governed by the provisions of the Company's Stock Option
Plans and Deferred Bonus Plan.
4. Change In Control of the Company. A change in control of the Company
defined as its sale, acquisition, merger or buyout to an unaffiliated person
that has significant effect or a reduction in the responsibilities, position or
compensation of Employee or if Employee is required to move the location of his
principal residence a distance of more than 35 miles prior to or during the
initial 12 months of the change of control will entitle Employee to the
following severance:
(i) 24 month's salary paid as salary continuation plus a lump sum
payment equal to the average of the previous 3 years bonus
payment inclusive of deferred amounts. Salary continuation
shall terminate if and when Employee beings new employment
during the period of salary continuation.
(ii) Health and welfare benefits shall be fully paid by the
Company and run concurrently with salary continuation.
(iii) All stock options shall become fully vested and exercisable
and Employee's deferred bonus payments shall be fully vested
and paid.
(iv) Employee shall be provided out-placement services with a
mutually agreed upon out-placement firm or service selected
by the Company and at the reasonable expense of the Company.
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5. Confidentiality, Non-competition and Non-Solicitation.
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(a) Ownership. Employee agrees that all inventions, copyrightable
material, business and/or technical information, marketing plans, customer lists
and trade secrets which arise out of the performance of this Agreement are the
property of the Company.
(b) Confidentiality. Except as is consistent with Employee's duties and
responsibilities within the scope of his employment with the Company, Employee
agrees to keep confidential indefinitely, and not to use or disclose to any
unauthorized person, information which is not generally known and which is
proprietary to the Company, including all information that the Company treats as
confidential, ("Confidential Information"). Upon termination of Employee's
employment, Employee will promptly turn over to the Company all software,
records, manuals, books, forms, documents, notes, letters, memoranda, reports,
data, tables, compositions, articles, devices, apparatus, marketing plans,
customer lists 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.
(c) 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 equity) with the Company 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 owns,
renders or proposes to render consulting or management
services.
(d) Non-solicitation.Employee agrees not to solicit or recruit, directly
or indirectly, any management employee (director level and above) of the Company
for employment during the one (1) year period after termination of his
employment relationship with the Company.
6. Miscellaneous.
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(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) Modification, 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
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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, Arbitration. The laws of Delaware will govern the
validity, construction, and performance of this Agreement. Any controversy or
claim arising out of or relating to this Agreement, or the breach thereof, shall
be settled by binding arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. Both the Company and Employee hereby consent to this binding
arbitration provision.
(d) Remedies. Employee understands that if he fails to fulfill his
obligations under this Agreement, the damages to the Company 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.
(e) Captions. The headings in this Agreement are for convenience only
and do not affect the interpretation of this Agreement.
(f) Severability. To the extent any provision of this Agreement shall
be invalid or enforceable with respect to Employee, it shall be considered
deleted here from 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.
(g) 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 of personnel manuals of the Company.
(h) 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:
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If to the Company, to:
Isle of Capri Casinos, Inc.
1641 Popps Ferry Road
Biloxi MS 39532
If to the Employee: to:
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.
ISLE OF CAPRI CASINOS, INC.
By: /s/ Bernard Goldstein
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"EMPLOYEE"
By: /s/ John Gallaway
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