EXHIBIT 10.9
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into as of 1-1-98 by
and between Empress Casino Joliet Corporation, an Illinois corporation (the
"Company"), and William J. Sabo ("Consultant").
RECITALS:
The Company desires to engage Consultant to provide certain consulting
services to the Company, and Consultant desires to provide such services to the
Company, all on the terms and conditions set forth in this Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, the parties agree as follows:
1. Consulting Services.
a. On the terms and conditions hereinafter set forth, the Company
hereby retains Consultant to render consulting services and Consultant accepts
such consulting arrangement. In his capacity as a consultant, Consultant shall
be an independent contractor of the Company and shall not be an employee.
b. The term of Consultant's engagement as a consultant shall be for a
period of two (2) years beginning on the date hereof (the "Consulting Term").
c. The general scope of Consultant's obligations hereunder shall be to
serve in a consulting capacity for the Company and to perform such other duties
in accordance therewith as the Company may reasonably request, at such times and
places as may be agreed by the parties. Consultant shall report to, and be
subject to the direction of, the Company's Chief Executive Officer and Board of
Directors.
d. Consultant shall devote such time, attention and energy as may be
necessary to respond to reasonable and proper requests by the Company for
services hereunder.
e. During the Consulting Term, Consultant shall use his best efforts
to advance the business and welfare of the Company, and to discharge any other
duties assigned to him. He shall not intentionally take any action against the
best interests of the Company.
2. Consulting Fee. The Company agrees to pay or cause to be paid to Consultant
for all services hereunder during the Consulting Term an annual consulting fee
of Seventy-Five Thousand Dollars ($75,000), payable in equal bi-monthly
installments during the Consulting Term in accordance with the Company's
customery payroll practices. The Company agrees to reimburse Consultant in
accordance with the Company's policies for all reasonable business expenses,
including travel expenses, incurred by him in rendering consulting services
hereunder, upon receipt of appropriate supporting documentation. The Company
also shall provide Consultant with health insurance, at the Company's expense,
comparable to such insurance
provided to the Company's executive employees generally, during the Consulting
Term. The Company shall also reimburse the Consultant during the term of this
Agreement for the use of an automobile including any maintenance, repair and
insurance expenses. Any expenses hereunder that would be shared expenses between
the Company and Empress Casino Hammond Corporation may be allocated between the
companies at the end of the calendar year.
3. Termination. Consultant's engagement as a consultant hereunder may be
terminated by the Company prior to the end of the Consulting Term only as
follows:
a. upon the death of Consultant;
b. if Consultant for any reason becomes unable to carry out all or
substantially all of his duties and remains so incapacitated for a period of 60
days in any 90-day period; or
c. for "cause", which shall be defined as (i) the commission of a
felony or of a crime involving moral turpitude, (ii) the material breach of his
obligation to provide consulting services hereunder which is not corrected
within a ten (10) day period following his receipt of written notice from the
Company specifying the nature of the breach, or (iii) the commission of a
willful act resulting in harm to the Company's business, reputation or
prospects.
In the event Consultant's engagement as a consultant is terminated pursuant to
this Section 3 prior to the end of the Consulting Term, the Company shall have
no further obligation to pay Consultant; provided that in the case of
Consultant's death, the Company shall continue payment of the consulting fee to
Consultant's estate for the remainder of the Consulting Term.
4. Covenants. Consultant covenants and agrees with each of the Corporations as
follows:
a. Non-Competition; Non-Solicitation. During the term of this Agreement
and continuing for a period of one (1) year thereafter (the "Restricted
Period"), Consultant shall not, directly or indirectly:
i. engage or participate, directly or indirectly, anywhere within a
200 mile radius of each of Hammond, Indiana and Joliet, Illinois (the
"Territory"), as an owner, partner, shareholder, consultant, director,
officer, employee, agent or otherwise, in any business which owns,
operates, manages or provides consulting services to a casino; or
ii. take any actions which are calculated to persuade any employee,
vendor or supplier of the Company to terminate or modify in any adverse
manner their association with the Company.
Consultant recognizes and agrees that the territorial, time and scope
limitations set forth in this Section 4(a) are reasonable and are required for
the protection of the Company and in the event that any such territorial, time
or scope limitation is deemed to be unreasonable by a court of competent
jurisdiction, the Company and the Consultant agree to the reduction of either or
any of said territorial, time or scope limitations to such an area, period or
scope as such court shall deem reasonable under the circumstances. The Company
agrees that the ownership by Consultant of publicly traded securities of a
corporation or other entity which owns, operates, manages or
provides consulting services to a casino shall not be a violation of the
provisions of this Section 4(a).
iii. Confidentiality. Consultant will not use or disclose to any
person, entity, association, firm or corporation any Confidential
Information of the Company which came into his possession as a result of
his relationship with the Company, except as necessary to perform his
duties under this Agreement. The term "Confidential Information" means
information and data not generally known outside the Company (unless as a
result of Consultant's breach of any of the terms of this Agreement or the
duties imposed by any then existing statute, regulation, ordinance or
common law or the wrongful act of any third party about which Offeror knew
or reasonably should have known) concerning the Company's business and
technical information, and includes, without limitation, information
relating to: (i) the identities of the Company's patrons and their needs,
credit histories and other information; (ii) suppliers' and vendors' costs,
products, services, discounts, margins, contact personnel and other
information; and (iii) the Company's trade secrets, margins, discounts,
financial and marketing information, personnel and compensation information
and business plans. Consultant understands that this Section 4(b) applies
to computerized as well as written information and to other information,
whether or not in written form.
5. General Terms.
a. Consultant agrees that he will not delegate his duties as a
consultant hereunder without the prior written consent of the Company. The
parties hereto may amend, modify and supplement this Agreement in such manner as
may be agreed upon by them in writing. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
permitted assigns, heirs and legal representatives.
b. This instrument contains the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes all prior
understandings and agreements of the parties with respect to the subject matter
hereof.
c. This Agreement may be executed in any number of counterparts,
including facsimile counterparts, each of which shall be deemed an original.
d. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois applicable to contracts made and to be
performed therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EMPRESS CASINO JOLIET CORPORATION
____________________________________ By: ______________________________
WILLIAM J. SABO Peter A. Ferro, Jr.,
Chief Executive Officer