Executive Employment Agreement - Gameco Inc. and Thomas Lee Witherow
EXECUTIVE EMPLOYMENT AGREEMENT
THOMAS LEE WITHEROW
EXECUTIVE EMPLOYMENT AGREEMENT
("AGREEMENT")
EXECUTIVE EMPLOYMENT AGREEMENT, effective February 22, 2002 ("Effective
Date"), by and between Gameco, Inc., a Delaware corporation (the "Company"), and
Thomas Lee Witherow (the "Executive").
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be so employed by the Company from and after the date of this
Agreement, it being specifically acknowledged by each party hereto that upon
execution and delivery of this Agreement, the employment agreement dated August
6, 2001, between the Executive and Black Hawk Gaming & Development Company, Inc.
shall be terminated and superseded by this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
ARTICLE I
EMPLOYMENT DUTIES AND BENEFITS
SECTION 1.1 EMPLOYMENT. The Company hereby employs the Executive as Chief
Operating Officer of Casino Operations of the Company. The Executive accepts
such employment and agrees to perform the duties and responsibilities assigned
to him under this Agreement.
SECTION 1.2 DUTIES AND RESPONSIBILITIES. During the period of employment,
the Executive agrees to serve the Company as Chief Operating Officer of Casino
Operations of the Company and in such other offices and directorships of the
Company and of its subsidiaries and related companies (collectively,
"Affiliates") to which he may be elected or appointed, and to perform the duties
commensurate with such positions and such other reasonable and appropriate
duties as may be requested of him by the board of directors of the Company (the
"Board of Directors") and of the Affiliates, as applicable, in accordance with
this Agreement and in compliance with all applicable laws and regulations.
Excluding periods of vacation and sick leave to which the Executive is entitled,
the Executive shall devote such time, energy, and skill to the business and
affairs of the Company and its Affiliates and to the promotion of their
interests as is necessary to perform the duties required of him by this
Agreement.
SECTION 1.3 WORKING FACILITIES; LOCATION. The Executive shall be furnished
with facilities and services suitable to his position and adequate for the
performance of his duties under this Agreement. The principal place of
performance by the Executive of his duties hereunder shall be in Black Hawk,
Colorado, or at such other location as he may reasonably be required to travel
in the performance of his responsibilities.
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SECTION 1.4 VACATIONS. The Executive shall be entitled each year during the
Term, as defined below, to a vacation with full salary and benefits, for the
number of weeks established by the Board of Directors.
SECTION 1.5 EXPENSES. The Executive is authorized to incur reasonable
expenses for promoting the business of the Company, including expenses for
entertainment, travel and similar items. The Company will promptly reimburse the
Executive for all such expenses upon the presentation by the Executive, from
time to time, of an itemized account of such expenditures.
SECTION 1.6 VEHICLE ALLOWANCE. The Executive shall be paid a vehicle
allowance of $500 per month or, at his election, the Company shall lease for not
more than $500 per month a vehicle for the use of the Executive, the make and
model of which shall be mutually agreeable to the Company and the Executive.
SECTION 1.7 BENEFIT PLANS. From the effective date of this Agreement, the
Executive shall be entitled to participate in benefit plans provided to
employees of the Company or Affiliates. Such participation shall be based upon
the policies established ;by the Board of Directors as applicable to the
Executive.
ARTICLE II
COMPENSATION
SECTION 2.1 BASE SALARY. During the Term, the Company shall pay to the
Executive a base salary at the rate of $225,000 per year.
SECTION 2.2 BONUS AND BONUS PLAN PARTICIPATION. The Executive will be
entitled to an annual bonus for each year ended December 31 during the Term of
up to 33% of the Executive's base salary. The amount of the percentage within
that limit shall be determined in the sole discretion of the Board of Directors
and shall be based on written objectives defined by the Board of Directors.
ARTICLE III
TERM OF EMPLOYMENT AND TERMINATION
SECTION 3.1 TERM. This Agreement shall be for a period commencing on
February 22, 2002 and expiring on July 31, 2004; subject, however, to
termination during such period as provided in this Article (the "Term").
SECTION 3.2 TERMINATION BY THE COMPANY WITH CAUSE. The Company may
terminate the Executive's employment, at any time, for cause upon ten days'
written notice and opportunity for the Executive to remedy any non-compliance
with the terms of this Agreement (if such non-compliance can be remedied).
Grounds for termination "for cause" shall be any of the following: (i)
intentional and material breach of his duty of loyalty or care to the Company,
(ii) gross negligence or willful misconduct in performance of his duties during
the course of his employment, (iii) persistent failure to abide by the corporate
policies and procedures established by the Board of Directors; (iv) persistent
failure to execute the reasonable
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and lawful instructions of the Board of Directors relating to the operation of
the Company's business, and (v) conviction of any felony or loss of the
Executive's necessary gaming licenses or other regulatory approval. Upon the
date of termination of the Executive's employment pursuant to this Section 3.2,
the Company's obligation to pay any compensation (including bonuses) shall
terminate, at which time the Company shall be responsible for compensating the
Executive for any unpaid salary and vacation time not taken. Subject to this
exception and the obligation of the Company to compensate the Executive through
the notice period, no other compensation shall be payable to the Executive
should this Agreement be terminated pursuant to this Section 3.2.
SECTION 3.3 TERMINATION OR CESSATION OF EMPLOYMENT WITHOUT CAUSE. If the
Executive's employment is terminated or ceased without cause, all compensation
shall cease, but the Company shall be obligated to compensate the Executive with
a lump sum severance payment equal to the present value of his salary otherwise
payable during the remaining Term of this Agreement. In the event the
Executive's employment is terminated pursuant to this Section 3.3, the Executive
shall be entitled to participate in the bonus payable pursuant to Section 2.2,
with respect to the year in which his employment is terminated, prorated for the
year based on the number of full months employed during such year compared to
12. In addition, the non-competition covenant in Section 4.1(c) below shall be
automatically terminated on the effective date of any termination of Executive's
employment without cause.
SECTION 3.4 TERMINATION UPON DEATH OF THE EXECUTIVE. In addition to any
other provision relating to termination, this Agreement shall terminate upon the
Executive's death. In such event, all unpaid compensation, compensation for
vacation time not taken by the Executive and all expense reimbursements due to
the Executive shall be paid to the Executive's estate. In the event the
Executive's employment is terminated pursuant to this Section 3.4, the
Executive's estate also shall be entitled to a death benefit equal to six months
salary and to participate in the bonus payable pursuant to Section 2.2 with
respect to the year in which his employment is terminated, prorated for the year
based on the number of full months worked during such year compared to 12.
SECTION 3.5 TERMINATION UPON SALE. (a) If during the Term, the Company:
(i) is merged into another company;
(ii) sells all or substantially all of its assets to another company
or person;
(iii) experiences a change in ownership of 50% or more of its common
stock; or
(iv) issues shares in excess of 50% of its then outstanding stock to
another company or person
and the Executive is not offered, by the acquiring company or person, an
employment position, or not offered an employment position satisfactory to
him (in his sole discretion), he shall be deemed Terminated Without Cause
and shall be entitled to a
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severance payment in an amount equal to one year's Base Salary, which shall
be in addition to amounts payable to the Executive under Section 3.3 above.
(b) The foregoing subsection 3.5(a) shall not apply if the Executive
is an equity participant in any of the transactions described in subsection
3.5(a)(i)-(iv) above.
ARTICLE IV
CONFIDENTIALITY AND COMPETITION
SECTION 4.1 FURTHER OBLIGATIONS OF THE EXECUTIVE DURING AND AFTER
EMPLOYMENT.
(a) The Executive agrees that during the term of his employment under
this Agreement and for an additional period of one year, he will engage in
no business activities which are or may be competitive with, or which might
place him in a competing position to that of, the Company or any Affiliate
except as authorized by the Company's Board of Directors.
(b) The Executive realizes that during the course of his employment,
the Executive will have produced and/or have access to confidential plans,
information, business opportunity records, notebooks, data, specifications,
trade secrets, customer lists and account lists of the Company and its
Affiliates ("Confidential Information"). Therefore, during and subsequent
to his employment by the Company, or by an Affiliate, the Executive agrees
to hold in confidence and not to directly or indirectly disclose or use or
copy or make lists of any such Confidential Information, except to the
extent authorized by the Company in writing. All records, files, business
plans, documents, equipment and the like, or copies thereof, relating to
Company's business, or the business of an Affiliate, which the Executive
shall prepare, or use, or come into contact with, shall remain the sole
property of the Company, or of the Affiliate, and shall not be removed from
the Company's or the Affiliate's premises without its written consent, and
shall be promptly returned to the Company upon termination or resignation
of employment with the Company or Affiliates.
(c) Because of his employment by the Company, the Executive will have
access to trade secrets and confidential information about the Company, its
business plans, its business accounts, its business opportunities, its
expansion plans into other geographic areas and its methods of doing
business. The Executive agrees that for the Term of this Agreement and an
additional period of one year he will not take any actions which are
calculated to persuade any employee, vendor or supplier of the Company to
terminate or modify in any adverse manner his or its association with the
Company.
(d) In the event a court of competent jurisdiction finds any provision
of this Section 4.1 to be so overbroad as to be unenforceable, then such
provision shall be reduced in scope by the court, to the extent deemed
necessary by the court to render the provision reasonable and enforceable.
The Executive acknowledges and agrees that any breach of this Agreement by
the Executive would cause immediate irreparable harm to
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the Company. The Executive agrees that should he violate any of the terms
and conditions of this Agreement, the Company, at its sole discretion,
shall be entitled to seek and obtain immediate injunctive relief and enjoin
further and future violations of this Agreement.
ARTICLE V
DISABILITY AND ILLNESS
SECTION 5.1 DISABILITY AND SALARY CONTINUATION.
(a) Definition of Total Disability. For purposes of this Agreement,
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the terms "totally disabled" and "total - disability" shall mean disability
as defined in any total disability insurance policy or policies, if any, in
effect with respect to the Executive. If no insurance policy is in effect,
"total disability" shall mean a medically determinable physical or mental
condition which, in the opinion of two physicians chosen by the mutual
consent of the parties, renders the Executive unable to perform
substantially all of the duties required pursuant to this Agreement. Total
disability shall be deemed to have occurred on the date of the disabling
injury or onset of the disabling illness, as determined by the two
independent physicians. In the event that the two independent physicians
are unable to agree as to the date of the disabling injury or onset of the
disabling illness, such date shall be deemed to be the later of the two
dates determined by the physicians chosen pursuant to this SECTION 5.1(a).
(b) Salary Continuation. If the Executive becomes totally disabled
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during the term of this Agreement, his full salary shall be continued for
90 days from the date of the disabling injury or onset of the disabling
illness as determined in accordance with the provisions of SECTION 5.1(a)
above, and thereafter the Executive's employment may be terminated in
accordance with the provisions of SECTION 3.3.
SECTION 5.2 ILLNESS. If the Executive is unable to perform the services
required under this Agreement by reason of illness or physical injury not
amounting to total disability, also as determined in this Article, the
compensation otherwise payable to the Executive under this Agreement shall be
continued for a period of six months and he shall be entitled to participate in
the bonus payable in SECTION 2.2 with respect to the year in which the illness
occurred, prorated for the year based on the number of months worked during such
year compared to 12, after which the Executive's employment may be terminated
and the Company shall have no further obligation to the Executive.
ARTICLE VI
GENERAL MATTERS
SECTION 6.1 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Colorado and shall be construed in accordance therewith.
SECTION 6.2 NO WAIVER. No provision of this Agreement may be waived except
by an agreement in writing signed by the waiving party. A waiver of any term or
provision shall not be construed as a waiver of any other term or provision.
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SECTION 6.3 AMENDMENT. This Agreement may be amended, altered or revoked at
any time, in whole or in part, by filing with this Agreement a written
instrument setting forth such changes, signed by each of the parties.
SECTION 6.4 BENEFIT. This Agreement shall be binding upon the Executive and
the Company, and shall not be assignable by either party without the other
party's written consent.
SECTION 6.5 SEVERABILITY. If any provision of this Agreement is declared by
any court of competent jurisdiction to be invalid for any reason, such
invalidity shall not affect the remaining provisions. On the contrary, such
remaining provisions shall be fully severable, and this Agreement shall be
construed and enforced as if such invalid provisions had not been included in
the Agreement.
SECTION 6.6 EFFECTIVE DATE. The effective date of this Agreement shall be
February 22, 2002.
SECTION 6.7 Arbitration. The Company and the Executive expressly agree that
all disputes arising out of this Agreement shall be resolved by arbitration in
accordance with the following provisions. Either party must demand in writing
such arbitration within ten days after the controversy arises by sending a
notice to arbitrate to both the other party and to the American Arbitration
Association (hereinafter referred to as "AAA"). The controversy shall then be
arbitrated pursuant to the rules promulgated by the AAA at the AAA's offices
located in Denver, Colorado. The parties will select by mutual agreement the
arbitrator or arbitrators (hereinafter collectively referred to as "arbitrator")
to hear and resolve the controversy. The arbitrator shall be governed by the
express terms of this Agreement and the laws of the State of Colorado. The
arbitrator's decision shall be final and binding on the parties and shall bar
any suit, action, or proceeding instituted in any federal, state, or local court
or administrative tribunal. Notwithstanding the preceding sentence, the
arbitrator's judgment may be entered in any court of competent jurisdiction.
These arbitration provisions shall survive the termination of this Agreement.
GAMECO, INC.
By:__________________________________________
Jeffrey P. Jacobs, Chief Executive Officer
EXECUTIVE:
__________________________________________
Thomas Lee Witherow
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Schedule to Exhibit 10.3
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Omitted Documents
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Document Party
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Joinder Agreement Gold Dust West Casino, Inc.
Joinder Agreement Black Hawk/Jacobs Entertainment, LLC
Joinder Agreement Gilpin Hotel Venture
Joinder Agreement Gilpin Ventures, Inc.
Joinder Agreement Jalou II Inc.
Joinder Agreement Winner's Choice Casino, Inc.
Joinder Agreement Diversified Opportunities Group Ltd.
Joinder Agreement Jalou L.L.C.
Joinder Agreement Houma Truck Plaza & Casino, L.L.C.
Joinder Agreement Jalou-Cash's L.L.C
Joinder Agreement JACE, Inc.
Joinder Agreement Lucky Magnolia Truck Stop and Casino L.L.C.
Joinder Agreement Bayou Vista Truck Plaza and Casino, L.L.C.
Joinder Agreement Raceland Truck Plaza and Casino, L.L.C.