Exhibit 10.12
EMPLOYMENT AGREEMENT
This Agreement (the "Agreement") is made and entered into as of this 15th
day of February, 2006 by and between Timothy J. Cope, an individual resident of
the State of Minnesota (the "Executive") and Lakes Entertainment, Inc., a
Minnesota corporation, including its subsidiaries and affiliates (collectively,
"Employer" or the "Company").
RECITALS
WHEREAS, Executive currently is employed at will by the Company.
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company to continue to employ Executive
as a member of the senior management team of the Company; and
WHEREAS, the Board and the Executive wish to enter into this Agreement to
document the terms of the Executive's employment with the Company and provide
Executive with new and valuable consideration for his services in the form of
improved job security in the event Company terminates Executive's employment
without "Cause" (as defined below); and
WHEREAS, the Board wishes to encourage the Executive to continue his
employment with the Company and the Board believes that this objective can be
best served by providing for a compensation arrangement for the Executive upon
the Executive's termination of employment under certain circumstances in the
event of a Change Of Control (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual promises and covenants and
the respective undertakings of the Company and Executive set forth below the
Company and Executive agree as follows:
AGREEMENT
1. Employment. The Company hereby employs Executive, and Executive accepts
such employment and agrees to perform services for the Company, for the period
and upon the other terms and conditions set forth in this Agreement.
2. Term. The term of this Agreement and Executive's employment hereunder
will be a period of 36 months commencing on the above-referenced date and
expiring 36 months therefrom (the "Term"). The Term will be automatically
extended for successive additional one-year periods ("Additional Employment
Terms") unless, at least 60 days prior to the end of the Term or an Additional
Employment Term, the Company or the Executive has notified the other in writing
that the Agreement will terminate at the end of the then current term. A notice
of non-extension by the Company prior to the end of the Term or during any
Additional Employment Term will be treated consistent with subsection 8a of this
Agreement. A notice of non-extension by the Executive during the Term or any
Additional Employment Term will be treated as a termination by the Executive
with employment separation benefits as described in subsection 8d of this
Agreement.
3. Base Salary. Employer shall pay Executive an annual base salary in the
amount of Three Hundred Fifty Thousand and No/100 Dollars ($350,000) ("Base
Salary"), or such higher amount as may from time-to-time be determined by
Employer in its sole discretion. Such salary shall be paid in equal installments
in the manner and at the times as other employees of Employer are paid.
4. Incentive Compensation. Executive shall participate in Employer's
incentive compensation program from time-to-time established and approved by the
Employer's Board of Directors, such participation to be on the same terms and
conditions as from time-to-time apply to senior and executive vice presidents of
Employer.
5. Benefits. Employer shall provide to Executive such benefits as are
provided by Employer to other senior and executive vice presidents of Employer.
Executive shall pay for the portion of the cost of such benefits as is from
time-to-time established by Employer as the portion of such cost to be paid by
senior and executive vice presidents of Employer.
6. Costs and Expenses. Employer and Executive acknowledge that Executive
will incur travel and other expenses while traveling on business for Employer
and performing Executive's duties under this Agreement, and that it will be
inefficient for both Employer and Executive to provide for Employer to reimburse
Executive for such expenses as are not paid directly by Employer.
Accordingly, Employer shall pay to Executive during each calendar month (or
portion thereof) a monthly travel and expense fee in the amount of Six Hundred
Dollars ($600), which travel and expense fee shall be full and complete payment
to Executive for all such expenses. Employer and Executive acknowledge that the
actual amount of such expenses incurred by Executive during any given calendar
month may be more or less than the amount of such travel and expense fee.
7. Duties. The duties to be performed by Executive shall be designated from
time-to-time by the Board and will include responsibility for operating
Employer's business.
8. Termination.
a. At the Expiration of the Term.
If the Executive's employment with the Company terminates at the end
of the Term or any Additional Employment Term, the Company will have no further
obligation to the Executive under this Agreement, except for accrued and unpaid
Base Salary and benefits that the Executive has accrued pursuant to any
applicable benefit plans, practices, policies and programs provided by the
Company, earned but unused vacation for that calendar year, and unreimbursed
business-related expenses, in accordance with Company policy.
b. Automatic Termination Due to Death or Disability.
(1) If the Executive suffers any "Disability" (as defined below),
this Agreement and Executive's employment hereunder will automatically
terminate. "Disability" means the inability of the Executive to perform the
essential functions of his position, with or
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without reasonable accommodation, because of physical or mental illness or
incapacity, for a period of time ending when the Company must replace Executive
to avoid an undue hardship on the Company's business and operations. Upon
termination for Disability, the Company will pay to Executive an amount equal to
six months of his then Base Salary and provide during that period of time the
benefits as described in section 8c(3) below.
(2) This Agreement will automatically terminate on the date of
Executive's death.
c. Termination Without Cause or Constructive Termination.
The provisions of this section 8c shall apply following any
termination of Executive which is either (i) without "Cause" (as defined below);
or (ii) a "Constructive Termination" (as defined below) notwithstanding any
provision otherwise in any stock option agreement between the Company and the
Executive which provides for the grant to Executive of the right to purchase
shares of stock of the Company. In the event that Executive's employment is
terminated, at any time, and such termination is either (i) without Cause; or
(ii) a Constructive Termination:
(1) Severance Payment.
Executive shall be entitled to receive his Base Salary (including
any accrued vacation) through his termination date and shall also be entitled to
receive severance benefits equal to his accrued and unpaid Base Salary, plus the
equivalent of bonus or incentive compensation (based upon the average bonus
percentage rate for the two (2) fiscal years of the Company preceding such
termination) for twelve (12) months, or for the period of time remaining in the
Term, whichever is longer (the "Severance Period"), payable in a lump sum
payment; and
(2) Benefits.
During the Severance Period, Executive and his dependents shall
continue to be entitled to all medical and dental insurance benefits of the type
that they received immediately prior to the date of such termination (or, in the
event their participation in a plan pursuant to which any such benefits are
provided is barred by the terms of such plan, benefits which are not less
favorable to them than the benefits under such plan), except to the extent
essentially equivalent and no less favorable benefits are provided to them by a
subsequent employer; provided, that Executive and his dependents shall continue
to bear the same portion of the cost of such benefits, if any, as they bore
immediately prior to the date of such termination. Upon conclusion of the
Severance Period, Executive may elect to continue his coverage at his expense as
permitted by the federal COBRA law and applicable Minnesota state law.
(3) Termination of the Severance Period.
The Severance Period and the Company's obligations in subsections (2)
and (3) above during the Severance Period will end immediately upon Executive
obtaining employment with any other person or entity in any capacity, whether as
an employee or independent contractor.
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(4) Waiver of Claims.
The Company's obligations to provide severance benefits in sections
8c(1) and 8c(2) above, and section 8(b)(1), are conditioned on Executive signing
a general release of legal claims and covenant not to sue in form and content
satisfactory to the Company.
(5) Compliance with Code Section 409A.
Company and Executive hereby agree to cooperate in good faith in
preparing and executing any written amendments to this Agreement (such as
restrictions on the timing of severance pay or deferred compensation payments)
that are reasonably necessary to timely comply with Code Section 409A, to the
extent that any compensation, severance pay or other benefits payable to
Executive under this Agreement are deemed to constitute a nonqualified deferred
compensation plan under Code Section 409A. All parties acknowledge that such any
amendment must be completed by the end of 2005, pursuant to guidance yet to be
issued by the Internal Revenue Service, unless the Internal Revenue Service
extends the time for such amendments to a later date.
d. Termination by the Executive.
The Executive may terminate this Agreement and his employment
hereunder at any time during the Term (or during any Additional Employment
Term), by providing the Company written notice of his intent to terminate at
least sixty (60) days prior to the effective date of his termination. During
this sixty-day period, the Executive must execute his duties and
responsibilities in accordance with the terms of this Agreement. If Executive
resigns, other than in a Constructive Termination, he will not be entitled to
any severance pay, or other compensation or benefits, except accrued and unpaid
Base Salary and benefits that the Executive accrued prior to the effective date
of his termination pursuant to any applicable benefit plan, earned but unused
vacation for that calendar year, and payment for unreimbursed business-related
expenses in accordance with Company policy.
e. Termination by the Company for Cause.
The Company will have the right to immediately terminate this
Agreement and Executive's employment hereunder for "Cause" (as defined below).
In the event of such termination for Cause, the Executive will only be entitled
to payment for accrued and unpaid Base Salary and benefits that the Executive
accrued prior to the effective date of his termination pursuant to any
applicable benefit plan, earned but unused vacation for that calendar year, and
payment for unreimbursed business-related expenses in accordance with Company
policy.
f. Stock Options.
If, and only if, Executive's employment is terminated under this
Section 8, all outstanding options to purchase shares of stock in the Company
shall immediately vest and become immediately exercisable and Executive or
Executive's legal representative shall have until the date which is two (2)
years after the date on which Executive ceases to be employed by
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the Company to exercise Executive's right to purchase shares of stock of the
Company under any such option agreements (whether entered into before or after
the date of this Agreement).
9. Termination Following a Change Of Control.
a. Severance Payment. In the event that Executive's employment is
terminated within two (2) years following a Change Of Control (as hereinafter
defined) and such termination is either (i) Without Cause; or (ii) is a
Constructive Termination, Executive shall receive, in addition to all
compensation due and payable to or accrued for the benefit of Executive as of
the date of termination, a lump sum payment, within five (5) days of the
determination of the Accounting Firm (as hereinafter defined) required under
paragraph (c) of this section, equal to two (2) times Executive's Annual
Compensation (as hereinafter defined) (the "Severance Payment"); and all
outstanding options to purchase shares of stock in the Company shall immediately
vest and become immediately exercisable and, Executive or Executive's legal
representative shall have until the date which is two (2) years after the date
on which Executive ceases to be employed by the Company to exercise Executive's
right to purchase shares of stock of the Company under any such option
agreements (whether entered into before or after the date of this Agreement).
Employer shall also use its best efforts to convert any then existing life
insurance and accidental death and disability insurance policies to individual
policies in the name of the Executive. The provisions of this section 9a shall
apply following any Change Of Control (as defined below) notwithstanding any
provision otherwise in any stock option agreement between the Company and the
Executive which provides for the grant to Executive of the right to purchase
shares of stock of the Company.
b. Excise Tax.
i. Anything in this Agreement to the contrary notwithstanding, in
the event that it shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise would constitute an "excess parachute payment" within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the "IRC"),
Executive shall be paid an additional amount (the "Gross-Up Payment") such that
the net amount retained by the Executive after deduction of any excise tax
imposed under Section 4999 of the IRC, and any federal, state and local income
and employment tax and excise tax imposed upon the Gross-Up Payment shall be
equal to the Severance Payment. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay federal income tax and
employment taxes at the highest marginal rate of federal income and employment
taxation in the calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at the highest marginal rate of taxation in the
state and locality of the Executive's residence on the effective date of the
Executive's termination or resignation, net of the maximum reduction in federal
income taxes that may be obtained from the deduction of such state and local
taxes.
ii. All calculations to be made under this Section 9 shall be
made by the Company's independent public accountant immediately prior to the
Change of Control (the "Accounting Firm"), which firm shall provide its
conclusions and any supporting calculations both to the Company and the
Executive within 10 days of the effective date of the Executive's resignation or
termination, as the case may be. Any such determination by the Accounting Firm
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shall be binding upon the Company and the Executive. Within five days after the
Accounting Firm's determination, the Company shall pay (or cause to be paid) or
distribute (or cause to be distributed) to or for the benefit of the Executive
such amounts as are then due to the Executive under this Agreement.
iii. The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than twenty (20) business days after the
Executive knows of such claim and Executive shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be paid.
The Executive shall not pay such claim prior to the expiration of the thirty day
period following the date on which he gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(1) give the Company any information reasonably requested by
the Company relating to such claim;
(2) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company;
(3) cooperate with the Company in good faith in order to
effectively contest such claim; and
(4) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including interest and
penalties, with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 9, the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearing and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and sue for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
resolution before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided further, however, that if the Company directs the Executive
to pay such claim and sue for a refund the Company shall advance the amount of
such payment to the Executive, on an interest-free basis and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax, including interest or penalties with respect thereto, imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and provided
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further that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
iv. If, after the receipt by the Executive of an amount advanced
by the Company pursuant to this Section, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of subsection(i), (ii) and (iii)
of this Section) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the Company pursuant
to this Section, a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
v. All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections (i) and (ii) above
shall be borne solely by the Company.
vi. Following a Change of Control and for a period of not less
than three years after the effective date of the resignation or termination of
the Executive, the Executive shall be entitled to indemnification and, to the
extent available on commercially reasonable terms, insurance coverage therefor,
with respect to the various liabilities as to which the Executive has been
customarily indemnified prior to the Change of Control. In the event of any
discrepancies between the provisions of this paragraph and the terms of any
Company insurance policy covering executive or any indemnification contract by
and between the Company and Executive, such insurance policy or indemnification
contract shall control.
10. Certain Definitions.
a. Annual Compensation. For the purposes of this Agreement, Annual
Compensation shall mean Executive's annual base salary plus annual bonus or
incentive compensation (computed at par levels), an amount equal to the annual
cost to Executive of obtaining annual health care coverage comparable to that
currently provided by Employer (grossed-up to compensate Executive for the
taxable nature of such payment), an amount equal to any normal matching
contributions made by Employer on Executive's behalf in Employer's 401(k) plan
(grossed-up to compensate Executive for the taxable nature of such payment),
annual automobile allowance, if any, and an amount equal to the annual cost to
Executive of obtaining life insurance and insurance coverage for accidental
death and disability insurance comparable to that provided by Employer (all as
grossed-up to compensate Executive for the taxable nature of such payments).
b. Change of Control.
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i. For the purposes of this Agreement, a "Change of Control"
shall mean:
(1) The acquisition by any person, entity or "group", within
the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of
1934 (the "Exchange Act") (excluding, for this purpose, (A) the Company, (B) any
employee benefit plan of the Company or its subsidiaries which acquires
beneficial ownership of voting securities of the Company or (C) Lyle Berman or
the four irrevocable trusts for the benefit of Mr. Berman's children) of
beneficial ownership, (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 25% or more of either the then outstanding shares of common
stock or the combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of directors; or
(2) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the Directors of the
Company, as such terms are used in Rule 14 a-11 of Regulation 14A promulgated
under the Exchange Act) shall be, for purposes of this Agreement, considered as
though such person were a member of the Incumbent Board; or
(3) Approval by the shareholders of the Company of (A) a
reorganization, merger or consolidation, in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than 50% of the combined voting power of the reorganized, merged or consolidated
company's then outstanding voting securities entitled to vote generally in the
election of directors of the reorganized, merged or consolidated company, or (B)
a liquidation or dissolution of the Company or (C) the sale of all or
substantially all of the assets of the Company.
c. Cause.
i. For the purposes of this Agreement, "Cause" shall mean
termination of the Executive by the Company for any of the following reasons:
(1) the commission of a felony;
(2) the theft or embezzlement of property of Employer or the
commission of any similar act involving moral turpitude;
(3) the failure of Executive to substantially perform his
material duties and responsibilities under this Agreement for any reason other
than the Executive's death or Disability, which failure if, in the opinion of
the Company such failure is curable, is not cured within thirty (30) days after
written notice of such failure from the Board specifying such failure;
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(4) the Executive's material violation of a significant
Company policy; which violation the Executive fails to cure within 30 days after
written notice of such violation from the Company specifying such failure; or
which violation the Company, in its opinion, deems noncurable; or
(5) the revocation of any gaming license issued by any
governmental entity to Executive as a result of any act or omission by the
Executive.
d. Constructive Termination.
i. For the purposes of this Agreement, "Constructive Termination"
shall mean::
(1) a material, adverse change of Executive's
responsibilities, authority, status, position, offices, titles, duties or
reporting requirements (including directorships);
(2) an adverse change in Executive's annual compensation or
benefits;
(3) a requirement to relocate in excess of fifty (50) miles
from Executive's then current place of employment without Executive's consent;
or
(4) the breach by the Company of any material provision of
this Agreement or failure to fulfill any other contractual duties owed to the
Executive.
For the purposes of this definition, Executive's responsibilities, authority,
status, position, offices, titles, duties and reporting requirements are to be
determined as of the date of this Agreement. For purposes of this section, all
determinations of Constructive Termination shall be made in good faith by
Executive and shall be conclusive.
ii. Notwithstanding the provisions of subsection (i) above, no
termination by the Executive will constitute a Constructive Termination unless
the Executive shall have provided written notice to the Company of his intention
to so terminate this Agreement, which notice sets forth in reasonable detail the
conduct that the Executive believes to be the basis for the Constructive
Termination, and the Company will thereafter have failed to correct such conduct
(or commence action to correct such conduct and diligently pursue such
correction to completion) within 30 days following the Company's receipt of such
notice.
11. Confidentiality.
Except to the extent required by law, Executive shall keep confidential and
shall not, without the Company's prior, express written consent, disclose to any
third party, other than as reasonably necessary or appropriate in connection
with Executive's performance of his duties under this Agreement or any
employment agreement, if any, the Company's "Confidential Information."
"Confidential Information" means any information that Executive learns or
develops during the course of employment that derives independent economic value
from being not generally known or readily ascertainable by other persons who
could obtain economic value
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from its disclosure or use, or any information that Company reasonably believes
to be Confidential Information. It includes, but is not limited to, trade
secrets, customer lists, financial information, business plans and may relate to
such matters as research and development, operations, site selection/analysis
processes, management systems and techniques, costs modeling or sales and
marketing.
The provisions of this section 11 shall remain in effect after the
expiration or termination of this Agreement and Executive's employment
hereunder.
12. Agreement Not to Compete.
a. In consideration of the improved job security and other benefits of
this Agreement, Executive hereby agrees not to, without the prior written
consent of the Company's Board, directly or indirectly engage in any of the
following actions on or before the date that is two years after the date on
which Executive's employment by the Company is terminated for any reason:
i. Solicit, on Executive's own behalf or for any entity that is
in competition with the Company, any person or entity, including for example
Indian tribes, that is doing business with the Company or is an active prospect
to do business with the Company for the purpose of diverting Company's business
or active business opportunities in competition with Company; or
ii. Solicit for employment, endeavor to entice away from the
Company or otherwise interfere with the Company's relationship with any person
who is employed by or otherwise engaged to perform services for the Company,
whether for Executive's own account or for the account of any other individual,
partnership, firm or corporation or other business entity.
If the scope of Executive's agreement under this section 12 is determined
by any court of competent jurisdiction to be too broad to permit the enforcement
of all of the provisions of this section 12 to their fullest extent, then the
provisions of this section 12 shall be construed (and each of the parties hereto
hereby confirm its intent is that such provisions be so construed) to be
enforceable to the fullest extent permitted by applicable law. To the maximum
extent permitted by applicable law, Executive hereby consents to the judicial
modification of the provisions of this section 12 in any proceeding brought to
enforce such provisions in such a manner that renders such provisions
enforceable to the maximum extent permitted by applicable law.
b. The provisions of this section 12 shall remain in full force and
effect after the expiration or termination of this Agreement and Executive's
employment hereunder.
13. Acknowledgments; Irreparable Harm.
Executive agrees that the restrictions on competition, solicitation and
disclosure in this Agreement are fair, reasonable and necessary for the
protection of the interests of the Company. Executive further agrees that a
breach of any of the covenants set forth in sections 11 and 12 of this Agreement
will result in irreparable injury and damage to the Company for which the
Company would have no adequate remedy at law, and Executive further agrees that
in the event
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of a breach, the Company will be entitled to an immediate restraining order and
injunction to prevent such violation or continued violation, without having to
prove damages, in addition to any other remedies to which the Company may be
entitled to at law or in equity.
14. Notification to Subsequent Employers.
Executive grants the Company the right to notify any future employer or
prospective employer of Executive concerning the existence of and terms of this
Agreement and grants the Company the right to provide a copy of this Agreement
to any such subsequent employer or prospective employer.
15. Full Settlement.
The Company's obligations to make the payments provided for in this
Agreement and otherwise to perform it obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against Executive or others. Executive will
not be obligated to seek other employment, and except as provided in section
8c(4) above, take any other action by way of mitigation of the amounts payable
to Executive under any of the provisions of this Agreement. Employer agrees to
pay promptly as incurred, to the full extent permitted by law, all legal fees
and expenses which Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, Executive or others of the
validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive regarding the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the rate
published from time to time in The Wall Street Journal as the prime rate of
interest, plus two percent (2%).
16. Resolution of Disputes.
Any controversy, claim or dispute arising out of or relating to this Agreement
or the breach of this Agreement, other than such a matter arising from a
violation or threatened violation of sections 11 and 12, shall be settled by
arbitration in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association, and a judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction. The award rendered in any arbitration proceeding under this
section will be final and binding. Any demand for arbitration must be made and
filed within 60 days of the date the requesting party knew or reasonably should
have known of the event giving rise to the controversy or claim. Any claim or
controversy not submitted to arbitration in accordance with this section will be
considered waived, and therefore, no arbitration panel or court will have the
power to rule or make any award on such claims or controversy. Any such
arbitration will be conducted in the Minneapolis, MN metropolitan area. Both
Company and Executive recognize that each would give up any right to a jury
trial, but believe the benefits of arbitration significantly out-weigh any
disadvantage. Both further believe arbitration is likely to be both less
expensive and less time-consuming than litigation of any dispute there might be.
If there shall be any dispute between the Company and the Executive (i) in
the event of any termination of Executive's employment by the Company, whether
such termination was with
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or without Cause, or (ii) in the event of a Constructive Termination of
employment by the Company, then, unless and until there is a final,
nonappealable judgment by a court of competent jurisdiction, the Company shall
pay, and provide all benefits to Executive and/or Executive's family or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to section 8 or section 9 hereof, as the case may be, as though
such termination were by the Company without Cause or was a Constructive
Termination by the Company; provided, however, that the Company shall not be
required to pay any disputed amounts pursuant to this section except upon
receipt of an undertaking by or on behalf of Executive to repay all such amounts
to which Executive is ultimately adjudged by such court not to be entitled.
17. Withholding.
The Company may withhold from any amounts payable under this Agreement the
minimum Federal, state and local taxes as shall be required to be withheld
pursuant to any applicable law, statute or regulation.
18. Successors and Assigns.
This Agreement is binding upon, and shall inure to the benefit of the
Company and the Executive, and all successors and assigns of the Company. This
Agreement shall be binding upon and inure to the benefit of the Executive and
his heirs and personal representatives. The Company will require any successor
(whether direct or indirect, by purchase, merger or consolidation or otherwise)
to all or substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such agreement,
prior to the effectiveness of any such succession shall be a material breach of
this Agreement and shall entitle the Executive to any severance benefits payable
pursuant to sections 8 and 9 hereof.
19. Miscellaneous.
a. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Minnesota, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
b. All notices and other communications under this Agreement shall be
in writing and shall be given by hand to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
IF TO THE EXECUTIVE:
Timothy J. Cope
Lakes Entertainment, Inc.
130 Cheshire Lane
Minnetonka, MN 55305-1062
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IF TO THE COMPANY:
Lakes Entertainment, Inc.
Attn: Damon Schramm, General Counsel
130 Cheshire Lane
Minnetonka, MN 55305
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of section 19. Notices and communications
shall be effective when actually received by the addressee.
c. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such provision, together with
all other provisions of this Agreement, shall remain valid and enforceable and
continue in full force and effect to the fullest extent consistent with the law.
d. Notwithstanding any other provision of this Agreement, the Company
may withhold from amounts payable under this Agreement all federal, state, local
and foreign taxes that are required to be withheld by applicable laws or
regulations.
e. The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
f. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
20. Entire Agreement.
This Agreement constitutes the entire agreement between the parties,
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof, including but not limited to that certain
employment agreement dated February 21, 2002 and may not be modified or
terminated orally. No modification, termination or attempted waiver of this
Agreement shall be valid unless in writing and signed by the party against whom
the same is sought to be enforced.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and pursuant to the due authorization of its Board, the Company has caused
this Agreement to be executed in its name and on its behalf, all as of the day
and year first written above.
LAKES ENTERTAINMENT, INC.: EXECUTIVE:
By: /S/ Lyle Berman By: /S/ Timothy J. Cope
--------------------------------- ------------------------------------
Lyle Berman Timothy J. Cope
Its: Chairman and CEO Its: President and Chief Financial
Officer
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