<PAGE>
As filed with the Securities and Exchange Commission on May 4, 1999
Registration No. 333-76753
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
POST EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------
Mohegan Tribal Gaming Authority
(Exact name of registrant as specified in its charter)
Not Applicable 7993 06--1436334
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Identification Number)
incorporation or Classification Code
organization) Number)
Mohegan Tribal Gaming Authority
1 Mohegan Sun Boulevard
Uncasville, CT 06382
(860) 204-8000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
Roland J. Harris
Chairman and Member of Management Board
Mohegan Tribal Gaming Authority
1 Mohegan Sun Boulevard
Uncasville, CT 06382
(860) 204-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies to:
David B.H. Martin, Jr., Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
--------------
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<CAPTION>
Proposed
Proposed Maximum
Title of Each Class of Amount Maximum Aggregate Amount of
Securities to be to be Offering Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
8 1/8% Senior Notes Due
January 1, 2006....... $200,000,000 100% $200,000,000 $55,600(2)
- ------------------------------------------------------------------------------
8 3/4% Senior
Subordinated Notes Due
January 1, 2009....... $300,000,000 100% $300,000,000 $83,400(2)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933, as amended.
(2) Previously paid.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
All current and former officers, employees and members of the Authority are
entitled to be indemnified by the Authority pursuant to Section 7 of Mohegan
Tribal Ordinance No. 95-7/15-1, the ordinance that established the Authority,
"against reasonable expenses actually and necessarily incurred by that person
in connection with the defense of any action, suit or proceeding in which that
person is made a party by reason of being, or having been, such officer,
employee or member of the Authority." Indemnification is not available in the
event of an adjudication of liability for negligence or misconduct in the
performance of duty or for actions beyond the scope of employment. The
Authority also may reimburse such persons for the reasonable costs of
settlements of actions, suits or proceedings (so long as such settlements do
not involve findings of neglect, misconduct or ultra vires acts) deemed by the
Management Board to be in the best interests of the Authority.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<S> <C>
+1.1 Purchase Agreement, dated as of February 24, 1999 between Salomon
Brothers Inc., as Representative of the Initial Purchasers, and the
Mohegan Tribal Gaming Authority.
*3.1 Constitution of the Mohegan Tribe of Indians of Connecticut ratified
by Tribal vote on April 12, 1996 (filed as Exhibit 3.1 to Registration
Statement on Form S-1, File No. 33-80655 (the "1996 Form S-1") and
incorporated herein by reference).
*3.2 Ordinance No. 95-7/15-1 of the Tribe for Gaming on Tribal Lands,
enacted on July 20, 1995 (filed as Exhibit 3.2 to the 1996 Form S-1
and incorporated herein by reference).
*4.1 Note Purchase Agreement dated September 29, 1995 between the Mohegan
Tribal Gaming Authority and Sun International Hotels Limited (filed as
Exhibit 10.10 to 1996 Form S-1 and incorporated herein by reference).
*4.2 Form of Junior Subordinated Note due 2003 of the Mohegan Tribal Gaming
Authority (contained in the Note Purchase Agreement filed as Exhibit
4.1).
+4.3 Indenture dated March 3, 1999 among the Mohegan Tribal Gaming
Authority, the Mohegan Tribe of Indians of Connecticut and First Union
National Bank, as Trustee, relating to the 8 1/8% Senior Notes Due
2006 of the Mohegan Tribal Gaming Authority.
+4.4 Form of Global 8 1/8% Senior Note Due 2006 of the Mohegan Tribal
Gaming Authority (contained in the Indenture filed as Exhibit 4.2).
+4.5 Registration Agreement dated March 3, 1999 among The Mohegan Tribal
Gaming Authority, Salomon Smith Barney Inc., NationsBanc Montgomery
Securities, LLC, SG Cowen Securities Corporation, Bear, Stearns & Co.
Inc., BankBoston Robertson Stephens Inc. and Fleet Securities, Inc.
+4.6 Indenture dated as of March 3, 1999 among the Mohegan Tribal Gaming
Authority, Mohegan Tribe of Indians of Connecticut and State Street
Bank and Trust Company, as Trustee, relating to the 8 3/4% Senior
Subordinated Notes Due 2009 of the Mohegan Tribal Gaming Authority.
+4.7 Form of Global 8 3/4% Senior Subordinated Notes Due 2009 of the
Mohegan Tribal Gaming Authority (contained in the Indenture filed as
Exhibit 4.5).
+4.8 Registration Agreement dated March 3, 1999 among the Mohegan Tribal
Gaming Authority, Salomon Smith Barney Inc., NationsBanc Montgomery
Securities LLC, SG Cowen Securities Corporation, Bear, Stearns & Co.
Inc., BankBoston Robertson Stephens Inc. and Fleet Securities, Inc.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<S> <C>
+5.1 Opinion of Hogan & Hartson L.L.P.
*10.1 The Mohegan Tribe--State of Connecticut Gaming Compact between the
Mohegan Tribe of Indians of Connecticut and the State of Connecticut
(filed as Exhibit 10.1 to the 1996 Form S-1 and incorporated herein by
reference).
*10.2 Agreement dated April 25, 1994 between the Mohegan Tribe of Indians of
Connecticut and the State of Connecticut resolving certain land claims
(filed as Exhibit 10.2 to the 1996 Form S-1 and incorporated herein by
reference).
*10.3 Memorandum of Understanding dated April 25, 1994 between the Mohegan
Tribe of Indians of Connecticut and the State of Connecticut regarding
implementation of the Compact and the Resolution Agreement (filed as
Exhibit 10.3 to the 1996 Form S-1 and incorporated herein by
reference).
*10.4 Agreement dated June 16, 1994 between the Mohegan Tribe of Indians of
Connecticut and the Town of Montville, Connecticut (filed as Exhibit
10.4 to the 1996 Form S-1 and incorporated herein by reference).
*10.5 Land Lease dated September 29, 1995 between the Mohegan Tribe of
Indians of Connecticut and the Mohegan Tribal Gaming Authority (filed
as Exhibit 10.5 to the 1996 Form S-1 and incorporated herein by
reference).
+10.6 Amendment to the Land Lease dated February 19, 1999 between the
Mohegan Tribe of Indians of Connecticut and the Mohegan Tribal Gaming
Authority.
*10.7 Amended and Restated Gaming Facility Management Agreement dated August
30, 1995 between the Mohegan Tribe of Indians of Connecticut, the
Mohegan Tribal Gaming Authority and Trading Cove Associates (filed as
Exhibit 10.8 to the 1996 Form S-1 and incorporated herein by
reference).
*10.8 Development Services Agreement dated February 7, 1998 by and among the
Mohegan Tribal Gaming Authority, the Mohegan Tribe of Indians of
Connecticut and Trading Cove Associates (filed as Exhibit 10.15 to
Form 10-K, File No. 33-80655 (the "1998 Form 10-K") and incorporated
herein by reference).
*10.9 Relinquishment Agreement dated February 7, 1998 by and among the
Mohegan Tribal Gaming Authority, the Mohegan Tribe of Indians of
Connecticut and Trading Cove Associates (filed as Exhibit 10.14 to the
1998 Form 10-K and incorporated herein by reference).
+10.10 The Loan Agreement dated as of March 3, 1999 by and among the Mohegan
Tribal Gaming Authority, the Tribe, Bank of America National Trust and
Savings Associations as administrative agent, and NationsBanc
Montgomery Securities as lead arranger.
+10.11 Defeasance Escrow Deposit Agreement dated as of March 3, 1999 by and
among the Mohegan Tribal Gaming Authority, the Mohegan Tribe of
Indians of Connecticut and First Union National Bank.
+10.12 Construction Reserve Disbursement Agreement dated March 3, 1999 among
the Mohegan Tribal Gaming Authority, the Mohegan Tribe of Indians of
Connecticut and Fleet National Bank.
*10.13 The Merrill Lynch Non-Qualified Deferred Compensation Plan Trust
Agreement dated September 1, 1998 between the Mohegan Tribal Gaming
Authority and Merrill Lynch Trust (filed as Exhibit 10.16 to the 1998
Form 10-K).
10.14 Employment Agreement dated April 22, 1999 by and between the Mohegan
Tribal Gaming Authority and William J. Velardo.
10.15 Employment Agreement dated April 22, 1999 by and between the Mohegan
Tribal Gaming Authority and Mitchell Grossinger Etess.
10.16 Employment Agreement dated April 22, 1999 by and between the Mohegan
Tribal Gaming Authority and Jeffrey E. Hartmann.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- ------- -------------------
<S> <C>
+23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
+23.2 Consent of Arthur Andersen LLP.
24.1 Power of attorney (included on signature page).
+25.1 Statement on Form T-1 of Eligibility of Senior Trustee.
+25.2 Statement of Form T-1 of Eligibility of Senior Subordinated Trustee.
+99.1 Form of Senior Note Letter of Transmittal.
+99.2 Form of Notice of Senior Note Guaranteed Delivery.
+99.3 Form of Senior Note Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and other Nominees.
+99.4 Form of Senior Note Letter to Clients.
+99.5 Form of Senior Subordinated Note Letter of Transmittal.
+99.6 Form of Notice of Senior Subordinated Note Guaranteed Delivery.
+99.7 Form of Senior Subordinated Note Letter to Brokers, Dealers,
Commercial Banks, Trust Companies and other Nominees.
+99.8 Form of Senior Subordinated Note Letter to Clients.
</TABLE>
- --------
* Previously filed.
+ Previously filed as the corresponding exhibit to Registration Statement on
Form S-4 dated April 21, 1999, File No. 333-76753, and incorporated herein
by reference.
(b) Financial Statement Schedules.
The following financial statement schedule was filed with the Authority's
Annual Report on Form 10-K (File No. 033-80655), filed with the Commission on
December 22, 1998, and is incorporated herein by reference:
Schedule II--Valuation and Qualifying Accounts
Schedules not listed above have been omitted because they are
inapplicable or the information required to be set forth therein is
contained, or incorporated by reference, in the Financial Statements of the
Authority or notes thereto.
II-3
<PAGE>
Item 22. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of this Registration Statement through
the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in
this Registration Statement when it became effective.
The undersigned registrant hereby undertakes to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement when it becomes
effective; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement.
The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of Securities Act, the Authority has duly
caused this amended Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Uncasville, Connecticut,
on this 4th day of May, 1999.
Mohegan Tribal Gaming Authority
/s/ Roland J. Harris
By: _________________________________
Roland J. Harris
Chairman and Member, Management
Board
Pursuant to the requirements of the Securities Act, this amended
Registration Statement has been signed below by the following persons, in the
capacities indicated below, on this 4th day of May, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Roland J. Harris Chairman and Member,
______________________________________ Management Board
Roland J. Harris
* Vice-Chair and Member,
______________________________________ Management Board
Jayne G. Fawcett
* Executive Vice President
______________________________________ and General Manager,
William J. Velardo Mohegan Sun (Principal
Executive Officer)
* Senior Vice President and
______________________________________ Chief Financial Officer,
Jeffrey E. Hartmann Mohegan Sun (Principal
Financial and Accounting
Officer)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
* Treasurer and Member,
______________________________________ Management Board
Carlisle M. Fowler
* Corresponding Secretary
______________________________________ and Member, Management
Loretta F. Roberge Board
* Recording Secretary and
______________________________________ Member, Management Board
Shirley M. Walsh
* Member, Management Board
______________________________________
Mark F. Brown
* Member, Management Board
______________________________________
Courtland C. Fowler
* Member, Management Board
______________________________________
Maynard L. Strickland
* Member, Management Board
______________________________________
Glen R. LaVigne
</TABLE>
/s/ Roland J. Harris
* By: ____________________________________
Roland J. Harris
Attorney-In-Fact
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<S> <C>
+1.1 Purchase Agreement, dated as of February 24, 1999 between Salomon
Brothers Inc., as Representative of the Initial Purchasers, and the
Mohegan Tribal Gaming Authority.
*3.1 Constitution of the Mohegan Tribe of Indians of Connecticut ratified
by Tribal vote on April 12, 1996 (filed as Exhibit 3.1 to Registration
Statement on Form S-1, File No. 33-80655 (the "1996 Form S-1") and
incorporated herein by reference).
*3.2 Ordinance No. 95-7/15-1 of the Tribe for Gaming on Tribal Lands,
enacted on July 20, 1995 (filed as Exhibit 3.2 to the 1996 Form S-1
and incorporated herein by reference).
*4.1 Note Purchase Agreement dated September 29, 1995 between the Mohegan
Tribal Gaming Authority and Sun International Hotels Limited (filed as
Exhibit 10.10 to 1996 Form S-1 and incorporated herein by reference).
*4.2 Form of Junior Subordinated Note due 2003 of the Mohegan Tribal Gaming
Authority (contained in the Note Purchase Agreement filed as Exhibit
4.1).
+4.3 Indenture dated March 3, 1999 among the Mohegan Tribal Gaming
Authority, the Mohegan Tribe of Indians of Connecticut and First Union
National Bank, as Trustee, relating to the 8 1/8% Senior Notes Due
2006 of the Mohegan Tribal Gaming Authority.
+4.4 Form of Global 8 1/8% Senior Note Due 2006 of the Mohegan Tribal
Gaming Authority (contained in the Indenture filed as Exhibit 4.2).
+4.5 Registration Agreement dated March 3, 1999 among The Mohegan Tribal
Gaming Authority, Salomon Smith Barney Inc., NationsBanc Montgomery
Securities, LLC, SG Cowen Securities Corporation, Bear, Stearns & Co.
Inc., BankBoston Robertson Stephens Inc. and Fleet Securities, Inc.
+4.6 Indenture dated as of March 3, 1999 among the Mohegan Tribal Gaming
Authority, Mohegan Tribe of Indians of Connecticut and State Street
Bank and Trust Company, as Trustee, relating to the 8 3/4%
Senior Subordinated Notes Due 2009 of the Mohegan Tribal Gaming
Authority.
+4.7 Form of Global 8 3/4% Senior Subordinated Notes Due 2009 of the
Mohegan Tribal Gaming Authority (contained in the Indenture filed as
Exhibit 4.5).
+4.8 Registration Agreement dated March 3, 1999 among the Mohegan Tribal
Gaming Authority, Salomon Smith Barney Inc., NationsBanc Montgomery
Securities LLC, SG Cowen Securities Corporation, Bear, Stearns & Co.
Inc., BankBoston Robertson Stephens Inc. and Fleet Securities, Inc.
+5.1 Opinion of Hogan & Hartson L.L.P.
*10.1 The Mohegan Tribe--State of Connecticut Gaming Compact between the
Mohegan Tribe of Indians of Connecticut and the State of Connecticut
(filed as Exhibit 10.1 to the 1996 Form S-1 and incorporated herein by
reference).
*10.2 Agreement dated April 25, 1994 between the Mohegan Tribe of Indians of
Connecticut and the State of Connecticut resolving certain land claims
(filed as Exhibit 10.2 to the 1996 Form S-1 and incorporated herein by
reference).
*10.3 Memorandum of Understanding dated April 25, 1994 between the Mohegan
Tribe of Indians of Connecticut and the State of Connecticut regarding
implementation of the Compact and the Resolution Agreement (filed as
Exhibit 10.3 to the 1996 Form S-1 and incorporated herein by
reference).
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<S> <C>
*10.4 Agreement dated June 16, 1994 between the Mohegan Tribe of Indians of
Connecticut and the Town of Montville, Connecticut (filed as Exhibit
10.4 to the 1996 Form S-1 and incorporated herein by reference).
*10.5 Land Lease dated September 29, 1995 between the Mohegan Tribe of
Indians of Connecticut and the Mohegan Tribal Gaming Authority (filed
as Exhibit 10.5 to the 1996 Form S-1 and incorporated herein by
reference).
+10.6 Amendment to the Land Lease dated February 19, 1999 between the
Mohegan Tribe of Indians of Connecticut and the Mohegan Tribal Gaming
Authority.
*10.7 Amended and Restated Gaming Facility Management Agreement dated August
30, 1995 between the Mohegan Tribe of Indians of Connecticut, the
Mohegan Tribal Gaming Authority and Trading Cove Associates (filed as
Exhibit 10.8 to the 1996 Form S-1 and incorporated herein by
reference).
*10.8 Development Services Agreement dated February 7, 1998 by and among the
Mohegan Tribal Gaming Authority, the Mohegan Tribe of Indians of
Connecticut and Trading Cove Associates (filed as Exhibit 10.15 to
Form 10-K, File No. 33-80655 (the "1998 Form 10-K") and incorporated
herein by reference).
*10.9 Relinquishment Agreement dated February 7, 1998 by and among the
Mohegan Tribal Gaming Authority, the Mohegan Tribe of Indians of
Connecticut and Trading Cove Associates (filed as Exhibit 10.14 to the
1998 Form 10-K and incorporated herein by reference).
+10.10 The Loan Agreement dated as of March 3, 1999 by and among the Mohegan
Tribal Gaming Authority, the Tribe, Bank of America National Trust and
Savings Associations as administrative agent, and NationsBanc
Montgomery Securities as lead arranger.
+10.11 Defeasance Escrow Deposit Agreement dated as of March 3, 1999 by and
among the Mohegan Tribal Gaming Authority, the Mohegan Tribe of
Indians of Connecticut and First Union National Bank.
+10.12 Construction Reserve Disbursement Agreement dated March 3, 1999 among
the Mohegan Tribal Gaming Authority, the Mohegan Tribe of Indians of
Connecticut and Fleet National Bank.
*10.13 The Merrill Lynch Non-Qualified Deferred Compensation Plan Trust
Agreement dated September 1, 1998 between the Mohegan Tribal Gaming
Authority and Merrill Lynch Trust (filed as Exhibit 10.16 to the 1998
Form 10-K).
10.14 Employment Agreement dated April 22, 1999 by and between the Mohegan
Tribal Gaming Authority and William J. Velardo.
10.15 Employment Agreement dated April 22, 1999 by and between the Mohegan
Tribal Gaming Authority and Mitchell Grossinger Etess.
10.16 Employment Agreement dated April 22, 1999 by and between the Mohegan
Tribal Gaming Authority and Jeffrey E. Hartmann.
+23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1).
+23.2 Consent of Arthur Andersen LLP.
+24.1 Power of attorney (included on signature page).
+25.1 Statement on Form T-1 of Eligibility of Senior Trustee.
+25.2 Statement on Form T-1 of Eligibility of Senior Subordinated Trustee.
+99.1 Form of Senior Note Letter of Transmittal.
+99.2 Form of Notice of Senior Note Guaranteed Delivery.
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
------- -------------------
<S> <C>
+99.3 Form of Senior Note Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and other Nominees.
+99.4 Form of Senior Note Letter to Clients.
+99.5 Form of Senior Subordinated Note Letter of Transmittal.
+99.6 Form of Notice of Senior Subordinated Note Guaranteed Delivery.
+99.7 Form of Senior Subordinated Note Letter to Brokers, Dealers,
Commercial Banks, Trust Companies and other Nominees.
+99.8 Form of Senior Subordinated Note Letter to Clients.
</TABLE>
- --------
* Previously filed.
+ Previously filed as the corresponding exhibit to Registration Statement on
Form S-4 dated April 21, 1999, File No. 333-76753, and incorporated herein
by reference.
II-9
<PAGE>
Exhibit 10.14
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made this 22nd day of April
1999 by and between the MOHEGAN TRIBAL GAMING AUTHORITY, an instrumentality of
THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, a sovereign Indian nation having an
address of One Mohegan Sun Boulevard, Uncasville, Connecticut 06382 (the
"Employer"), and WILLIAM J. VELARDO, residing at 98 Ayers Point Road, Old
Saybrook, Connecticut 06475 ("Executive").
WITNESSETH:
WHEREAS, the Employer owns and operates the Mohegan Sun Casino and plans to
develop a resort hotel, convention center and future amenities (as presently
existing and hereafter developed, the "Business"); and
WHEREAS, the Employer desires to continue to employ Executive in the
Business for a term of years and for an increase in compensation but subject to
certain restrictions, all as more fully set forth in this Agreement, and
Executive desires to continue to be employed by Employer on the terms and
conditions set forth herein; and
WHEREAS the Employer is desirous of assuring that Executive has the
authority to fully carry out his duties hereunder by being responsible to the
Employer, acting through its Chairman (the "Chairman") of the Mohegan Tribal
Gaming Authority; and
WHEREAS it is understood and agreed that good communication requires a
direct and specific line of authority from the Employer, through the Chairman,
to Executive.
<PAGE>
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
terms and conditions hereinafter set forth, and for other good and valuable
consideration, receipt whereof is specifically acknowledged, the parties hereto
hereby agree as follows:
1. Nature of Services and Duties
(A) The Employer hereby agrees to continue to employ Executive as its
President and Chief Executive Officer upon the terms set forth herein, and
Executive hereby accepts such continued employment.
(B) Executive shall perform such duties and services of an executive,
managerial and administrative nature as are customary for a chief executive
officer and which, consistent with the foregoing, the Employer may from time to
time through communication from the Chairman hereafter assign to him. Such
duties shall include, but not be limited to, the following:
1. Executive shall report directly to and be responsible to the
Chairman;
2. Executive shall develop, implement, and monitor the strategic
plan for the Business;
3. Executive shall have the exclusive responsibility for policy
formulation for the Business, provided, however, that material
changes to the existing Policy and Procedures Manual of Mohegan
Sun must have the prior approval in writing of the Employer;
2
<PAGE>
4. Executive shall be responsible for developing and adopting
measures to improve customer service, and shall develop,
implement, monitor and evaluate operating budgets;
5. Executive shall recruit, hire, train, counsel an evaluate
divisional leaders;
6. Executive shall have the exclusive responsibility and authority
to direct the selection, retention, training, control, and
discharge of all employees performing services in connection with
the maintenance, operation and management of the Business, its
facility and any activity on the premises;
7. Executive shall be responsible for the enforcement of the Indian
Preference policy as stated in the Policy and Procedure manual
and Employee Handbook of Mohegan Sun. Executive shall have the
exclusive responsibility in developing and maintaining the Job
Compendium necessary to manage the Business, including any
changes to position titles unless governed by the Indian
Preference policy. Minimum Qualifications for any newly created
positions or changes to Minimum Qualifications for established
positions must have the prior approval in writing of the
Employer;
8. Executive shall have the exclusive responsibility for developing
both the operating and capital budget. Both the operating and
capital budget shall be presented to the Employer by the first of
3
<PAGE>
August preceding the next fiscal year, and the Employer shall
approve or modify the budget for the fiscal year on or before
September 15 of such year, in consultation with Executive;
9. Executive shall have the authority to negotiate agreements on
behalf of the Business provided that any contract greater than
one year in duration or with a value greater than $50,000 must be
approved by the Management Board. Executive shall give
preference to all certified tribal businesses, which are
"qualified". For the purposes of this subsection, a "qualified"
business must be a competitive bidder and be capable of
delivering the product or performing the service requested; and
10. Executive shall have the exclusive responsibility for developing
processes by which the Business shall sell, market and account
for its products and services.
(C) During the course of this Agreement and any extensions, only the
Executive and no other employee of the Employer shall have responsibility for
reporting to the Chairman of the Employer or its Management Board, and the
Employer shall not hire any person, other than Executive, to hold the authority
and responsibilities set forth in subparagraph 1(B).
(D) Executive shall devote his best efforts and ability and all required
business time to the performance of his duties and responsibilities hereunder to
achieve the goals set forth in the employer's annual business plan. Executive
shall perform all of his duties to the Employer faithfully, competently, and
diligently.
4
<PAGE>
(E) The Employer shall indemnify, defend, and hold Executive harmless,
including the payment of reasonable attorney fees, if the Employer does not
directly provide Executive's defense, from and against all claims made by
anyone, including, but not limited to, a corporate entity, company, other
employee, agent, patron, tribal member, or any member of the general public with
respect to any claim that asserts as a basis, any acts, omissions, or other
circumstances involving the performance of Executive.
2. Effective Date
This Agreement shall be effective on the date it is approved by the
Secretary of the United States Department of Interior (or his designee) or on
the date that the Secretary of the United States Department of Interior (or his
designee) writes to either party, stating that such approval is not required.
3. Term
This Agreement shall govern Executive's employment with the Employer from
the Effective Date through and including December 31, 2004. This Agreement,
including this paragraph, shall automatically renew for an additional term of
five years unless either party shall notify the other of its intention to
terminate, or unless otherwise terminated as provided herein. Any such notice
shall be delivered not later than 120 days prior to the end of the then current
term and shall be effective at the end of such term, except as otherwise
provided herein.
4. Base Annual Salary
Commencing with the Effective Date and until December 21, 1999, the
Employer shall continue to pay Executive his current Base annual Salary in equal
5
<PAGE>
weekly installments. Commencing January 1, 2000, the Base Annual Salary shall
be increased to $800,000.00 payable in equal weekly installments of $15,384.62.
Commencing on January 1, 2001 and on each January 1 thereafter during the term
of this Agreement, the Base Annual Salary shall be increased in an amount
mutually agreed to by Executive and the Employer, which amount shall in no event
be less that 5% of the then current Base Annual Salary.
5. Annual Bonus
The Employer shall determine an annual bonus payable to Executive, the
amount of which shall be based upon the financial goals and the division goals
of the Employer, and the personal goals of Executive, all as established by
mutual agreement at the beginning of each fiscal year. The annual bonus shall
be not less than 33 1/3% of the Annual Base Salary in effect for the period for
which the annual bonus is to be paid. The annual bonus for the previous fiscal
year shall be paid no later than October 31 of each year during the term.
6. Life Insurance
(A) The Employer shall, during the term of this Agreement apply for and
procure insurance on the life of Executive as more fully described in subsection
(B) of this Paragraph 6. Upon request of Employer, Executive shall submit to
such medical examinations, supply such information, and execute such documents
as may be required by the Employer or insurance companies to whom the Employer
has made application.
(B) So long as Executive is employed hereunder, the Employer shall maintain
a life insurance policy on the life of Executive in the face amount equal to
6
<PAGE>
one times the Executive's Annual Base Salary. Such policy shall be guaranteed
renewable during the term of this Agreement, including any extension hereof.
Executive shall be and remain the owner of such policy of life insurance and
shall enjoy all incidents of ownership, including the right to designate the
beneficiary and any right to borrow on such policy; provided, however, that the
beneficiary of such policy shall be the spouse of Executive, his child or
children, trustees for their benefit, his estate, or any one or more of them.
The Employer shall pay all premiums on such policy when due. In the event that
the Employer is unable to obtain such life insurance in the amount required or
is unable to obtain all or part of such insurance at standard rates, the
Employer shall at its option all or part of such insurance at non-standard rates
or shall self-insure in whole or in part.
In addition, Employer may at its option obtain key man insurance in amounts
determined by Employer, with the Employer as owner and beneficiary of such
policy or policies, and Executive shall cooperate with Employer and shall be
available for any and all examinations made at Employer's request.
(C) The results of any examinations conducted pursuant to this section
shall at all times remain confidential and shall not be sought by or disclosed
to the Employer or to any third party other than the insurance carrier.
7. Reimbursement of Certain Expenses; Vacation; Medical Benefits
(A) The Employer will reimburse Executive for necessary and reasonable
business expenses incurred by him in the performance of his duties hereunder,
provided, that he shall obtain the approval for such expenditures in accordance
with the procedures adopted by the Employer from time to time and generally
applicable
7
<PAGE>
to its executive-level employees, including such procedures with respect to
submission of appropriate documentation and receipts. Failure by Executive to
follow such procedures shall entitle the Employer to refuse to reimburse
Executive for such expenses until such times as such failure has been cured. It
is understood and agreed that Employer shall not be responsible for any expense
of Executive for leasing or operation of a vehicle for Executive (except that
Executive shall be entitled to reimbursement for the expenses, including
mileage, actually incurred in connection of his use of his automobile for the
business-related purposes of the Employer), nor for any expense of Executive for
legal expenses or tax planning expenses incurred by Executive in interpreting
this or any other agreement between Executive and Employer.
(B) Executive shall be entitled to four weeks paid vacation per fiscal year
(at least two weeks of which must be taken in 14 consecutive days).
(C) Executive shall participate in such employee benefit plans and programs
(including but not limited to medical insurance programs) as are now or may
hereafter be adopted by the Employer for its executive employees and their
families. Employer shall continue to provide such medical insurance coverage for
a period of one year after any termination by Employer of Executive's employment
hereunder if such termination was without Cause, as hereinafter defined.
8. Disability; Termination
(A) If Executive shall become unable to perform all of his duties set forth
in paragraph 1 of this Agreement due to mental or physical disability, all
compensation and benefits provided in this Agreement shall continue to be paid
8
<PAGE>
and provided in full for a period not exceeding 180 consecutive days. Upon
completion of such 180 days (or if Executive shall be disabled for an aggregate
period of 180 days in any period of 360 consecutive days by the same
incapacity), the Employer may, at its sole option, suspend Executive's
employment until Executive is recovered from such mental or physical disability
(as reasonably certified by a physician designated by the Employer). During any
period of suspension, Executive shall receive only such compensation as may be
provided under the disability insurance described in Paragraph 8(B).
(B) Employer, at the sole expense of Employer, shall provide disability
insurance coverage for Executive. Such policy shall provide payment of 50% of
Base Annual Salary commencing with termination of employment by reason of
physical or mental disability and for a period of two years if such disability
was the result of injury and to age 65 if such disability was the result of
physical or mental illness. In the event the Employer is unable to obtain
disability insurance in the amount required, or is unable to obtain all or part
of such insurance at standard rates, the Employer shall at its option obtain
part or all of such insurance at non-standard rates or shall self-insure in
whole or in part.
(C) Subject to the provisions of this paragraph, the Employer may terminate
Executive's employment for Cause, which shall mean only that (i) Executive shall
be in violation of the restriction contained in Paragraph 9 of this Agreement,
(ii) Executive shall fail to be, for a period of thirty (30) consecutive days,
licensed by the State of Connecticut or Class III gaming; (iii) Executive shall
have been convicted of any crime involving fraud, theft or moral turpitude, or
9
<PAGE>
(iv) Executive shall have intentionally committed a material breach of his
obligations under this Agreement in order to cause the Employer, acting through
the Chairman, to terminate Executive. In the event that Employer desires to
terminate Executive, the Employer shall give written notice specifying the
act(s) claimed to constitute cause and specifying an effective date of
termination, which date shall be no sooner than thirty (30) days after the
giving of such notice. Upon the written request of Executive, the Management
Board of the Employer shall meet with Executive to discuss the reasons for
termination and to provide Executive with an opportunity to respond. In the
event Executive fails to cure the act(s) claimed to constitute cause as set
forth in the notice of termination, Executive will cease employment with the
Employer effective upon the date provided in the notice of termination. If such
termination is for Cause, then Executive shall not be entitled to any further
compensation from and after the date of termination.
(D) Subject to the provisions of this paragraph, the Employer may terminate
Executive's employment other than for Cause, as defined above. In the event of
termination other than for Cause, Executive shall be paid, at termination, the
Annual Base Salary plus an annual bonus equal to one hundred percent (100%) of
the Annual Base Salary from the date of termination to the expiration date of
this Agreement (without regard to any renewal right after the date of
termination).
(E) In the event that Executive voluntarily terminates his employment
hereunder, Executive's employment shall cease as of the date provided in
Executive's notice to Employer of his voluntary termination, and thereafter,
10
<PAGE>
provided that the Employer shall not then be in material breach of this
Agreement, Executive shall not be entitled to any further compensation
hereunder.
9. Covenants of Executive Not to Compete
Executive acknowledges that in the states of New York, Connecticut,
Massachusetts, Rhode Island, Vermont, New Hampshire and Maine (the "Restricted
Area") (i) the Employer is one of a limited number of entities engaged in the
Business; (ii) his services to the Employer are special and unique; (iii) his
work for the Employer has given him and will continue to give him access to
confidential information concerning the Employer; and (iv) he has the means to
support himself and his dependents other than by engaging in the Business of the
Employer and the provisions of this Paragraph 9 will not impair such ability.
Accordingly, in order to induce the Employer to enter into this Agreement,
Executive covenants and agrees that:
(A) So long as Executive is employed by Employer and, if Executive's
employment is voluntarily terminated by Executive or terminated by the Employer
for Cause for a period of twelve (12) months thereafter (the "Restricted
Period") Executive shall not, in the Restricted Area, entertain any solicitation
of employment and shall not compete in any manner, either directly or
indirectly, including, without limitation, as an employee or independent
contractor, investor, partner, shareholder, officer, director, principal, agent
or trustee of any entity engaged in casino gaming, in the Restricted Area,
without the express written approval of the Employer; provided, however, that
ownership of less than five
11
<PAGE>
percent (5%) of the shares of a publicly traded corporation engaged in casino
gaming shall not be deemed to violate this Paragraph.
(B) During the Restricted Period, Executive shall not, directly or
indirectly, hire or solicit any employee of the Employer or encourage any such
employee to leave such employment.
10. Confidential Information
Executive agrees to receive Confidential Information (as hereinafter
defined) of the Employer in confidence, and not to disclose to other, assist
others in the application of, or use or his own gain, such information, or any
part thereof, unless and until it has become public knowledge, has come into the
possession of such other or others by legal and equitable means, or if required
to do so by order of a court of competent jurisdiction. Executive further
agrees that, upon termination of his employment with the Employer, all
documents, records, notebook and similar repositories of or containing
Confidential Information, including copies thereof, then in Executive's
possession, whether prepared by him or others, will be left with the Employer.
For purposes of this Paragraph 10, "Confidential Information" means information
disclosed to Executive or known by Executive as a consequence of or through his
employment by the Employer, not generally known in the industry in which the
Employer is or may become engaged about the Employer's Business, products,
processes and services. Executive's obligations under this Paragraph 10 shall
survive any termination or expiration of this Agreement and Executive's
employment hereunder.
12
<PAGE>
11. Rights and Remedies Upon Breach
Executive acknowledges and agrees that a violation of any provision of
Paragraph 9 or 10 of this Agreement (the "Restrictive Covenants") shall cause
irreparable harm to the Employer, and the Employer shall be entitled to specific
performance of this Agreement or an injunction without proof of special damages,
together with costs and attorney's fees incurred by the Employer in enforcing
its rights under this Agreement. If Executive breaches, or threatens to commit
a breach of any of the Restrictive Covenants, the Employer shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Employer under law or in equity:
(A) The right and remedy to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction including, without limitation,
the right to entry against Executive of restraining orders and injunctions
(preliminary, mandatory, temporary and permanent), without proof of special
damages, against violations, threatened or actual, and whether or not then
continuing of such covenants, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Employer and
that money damages will not provide an adequate remedy to the Employer and
(B) The right and remedy to require Executive to account for and pay over
to the Employer all compensation, profits, monies, accruals, increments or other
benefits derived or received by Executive as the result of any transaction
13
<PAGE>
constituting a breach of the Restrictive Covenants. The Employer may set off
any amounts due it under this Paragraph 11(B) against any amounts owed to
Executive under Paragraph 4, 5 or 8.
12. Notice
All notices hereunder shall be in writing. Any notice, request,
information, legal process, or other instrument to be given or served hereunder
by any party to another shall be deemed given or served hereunder by any party
to the other if either delivered personally or sent by prepaid registered or
certified mail, return receipt requested. Any such notice to the Employer shall
be sent to the address set forth in the introductory paragraph of this
Agreement, to the Chairman. Any such notice to Executive shall be sent to his
residential address as set forth in the introductory paragraph of this
Agreement. Either party may change the address of notice purposes to the other
party as provided in this Paragraph.
13. Entire Agreement; Modification
Except as otherwise provided herein, this Agreement supersedes and cancels
any and all prior agreements between the parties hereto, express or implied,
relating to the subject matter hereof. This Agreement sets forth the entire
agreement of the parties hereto with respect to the subject matter hereof. This
Agreement may not be changed, modified, amended or altered except in a writing
signed by both parties.
14. Non-Waiver
The failure or refusal of either party to insist upon the strict
performance of any provision of this Agreement or to exercise any right in any
one or more
14
<PAGE>
instances or circumstances shall not be construed as a waiver or relinquishment
of such provision or right and shall in no way effect such provision or right,
nor shall such failure or refusal be deemed a custom or practice contrary to
such provision or right.
15. Severability
If any paragraph, term or provision of this Agreement shall be held or
determined to be unenforceable, the balance of this Agreement shall nevertheless
continue in full force and effect and unaffected by such holding or
determination. In addition, in any such event, the parties agree that it is
their intention and agreement that any such paragraph, term or provision which
is held or determined to be unenforceable as written, shall nonetheless be
enforced and binding to the fullest extent permitted by law as though such
paragraph, term or provision had been written in such a manner to such an extent
as to be enforceable under the circumstances. Without limitation of the
foregoing, with respect to any Restrictive Covenant contained herein, if it is
determined that any such provision is excessive as to duration or scope, it is
intended that it nonetheless be enforced for such shorter duration or without
such narrower scope as will render it enforceable.
16. Governing Law
This Agreement shall be governed and construed in accordance with the laws
of the State of Connecticut and the parties agree that, except as provided in
section 19, only the federal and state courts located in the State of
Connecticut shall have jurisdiction over this Agreement.
15
<PAGE>
17. Limited Waiver of Sovereign Immunity
The Employer hereby waives its sovereign immunity from suit for claims by
the Executive for the enforcement of this Agreement and any remedies for breach
thereof under Connecticut law. Nothing herein shall limit the Executive's
right to proceed with any claims otherwise allowed under the laws of the Mohegan
Tribe of Indians of Connecticut. The Employer hereby consents to personal
jurisdiction and venue in any court of the State of Connecticut or any federal
court sitting in the State of Connecticut, and hereby waives any claim that it
may have that such court is an inconvenient forum for the purposes of any
proceeding arising under this Agreement as aforesaid and any requirement that
tribal remedies must be exhausted.
18. Dispute Resolution
Except as otherwise provided herein, whenever during the term of this
Agreement, any disagreement or dispute arises between the parties as to the
interpretation of this Agreement or any rights or obligations arising hereunder,
including the licensing of Executive by the Tribal Gaming Commission, such
matters shall be resolved, whenever possible, by meeting and conferring. Any
party may request such a meeting by giving notice to the other, in which case
such other party shall make itself available within seven (7) days thereafter.
If such matters cannot be resolved within ten (10) days after such meeting,
either party may seek a resolution by binding arbitration in accordance with the
then prevailing rules of the American Arbitration Association (or any successor
thereto to the extent not inconsistent herewith), upon notice to the other party
of its intention to do so. The
16
<PAGE>
parties agree that in any such arbitration each party shall be entitled to
discovery as provided by the Federal Rules of Civil Procedure. All hearings
shall be conducted in Hartford County, Connecticut within fifteen (15) days
after the arbitrator is selected and shall be conducted in his or her presence.
The decision of the arbitrator will be final and binding on the parties. The
costs and expenses of the arbitration shall be shared equally by the parties.
17
<PAGE>
19. Gaming Disputes Court Jurisdiction
The Gaming Disputes Court of the Mohegan Tribe of Indians shall have
limited jurisdiction, in the event that a state or federal court denies
jurisdiction, to (a) enforce the requirement that the parties submit disputes to
arbitration as required by paragraph 18 and (b) enforce the arbitration
decision as provided in Paragraph 18.
20. Headings
The headings of this Agreement are inserted for convenience only and shall
not be considered in construction of the provisions hereof.
21. Assignment and Successors; Binding Effect
The rights and obligations of the Employer under this Agreement shall inure
to the benefit of and shall be binding upon the successors of the Employer and
may be assigned, for all or any part of the term hereof, by the Employer but the
Employer shall continue to be financially responsible to Executive hereunder.
Executive shall have no right to assign, transfer, pledge or otherwise encumber
any of the rights, nor to delegate any of the duties created by this Agreement
without prior written consent of the Employer. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Employer, its
successors and assigns, and Executive, his heirs and legal representatives.
22. Federal Approval Provisions
Consistent with the provisions of 25 U.S.C. (S) 81, the parties set forth
the following:
18
<PAGE>
Party in Interest: Mohegan Tribal Gaming Authority
Address: One Mohegan Sun Boulevard, Uncasville, Connecticut 06382
Occupation: Instrumentality of an Indian Tribe
Party in Interest: William J. Velardo
Address: 98 Ayers Point Road, Old Saybrook, Connecticut 06475
Occupation: President/Chief Executive Officer, Mohegan Tribal Gaming Authority
Fixed limited time to run: From the effective date up to and including December
31, 2004, subject to renewal for an additional five (5) years.
Purpose: This Agreement governs the employment of William J. Velardo as the
President and Chief Executive Officer of the Mohegan Sun Casino.
Scope of Tribal Authority and Reason for Exercising that Authority: The
Chairman of the Management Board of the Mohegan Tribal Gaming Authority is
authorized to execute this Agreement pursuant to pursuant (i) Article XIII,
Section 1 of the Mohegan Tribe Constitution, (ii) An Ordinance Establishing the
Mohegan Tribal Gaming Authority, and (iii) Resolution No. _______ of the
Management Board dated April 22, 1999. The Chairman of the Management Board
exercises his authority in this instance because the Management Board has
determined that execution of this Agreement will further the economic
development objectives of the Mohegan Tribal Gaming Authority and of The Mohegan
Tribe of Indians of Connecticut.
Time and Place of Execution: This Agreement was executed on or about 2:45 PM
(time) on April 22nd, 1999, at Uncasville, Connecticut, for the particular
purposes set forth above.
Execution in Duplicate: This Agreement shall be executed in duplicate originals
for each party.
The undersigned agree that the foregoing Agreement is in compliance with 25
U.S.C. Section 81.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed
by the Chairman of its Management Board, duly authorized, and
19
<PAGE>
Executive has affixed his signature hereto, on the date and year first above
written.
Employer: Executive:
MOHEGAN TRIBAL WILLIAM J. VELARDO
GAMING AUTHORITY
By: _____________________________ ___________________________________
Roland J. Harris, Chairman William J. Velardo
Management Board
STATE OF CONNECTICUT )
ss. Montville April 22, 1999
COUNTY OF NEW LONDON )
Personally appeared ROLAND J. HARRIS, Chairman of the Management Board of
the MOHEGAN TRIBAL GAMING AUTHORITY, an instrumentality of The Mohegan Tribe of
Indians of Connecticut, signer and sealer of the foregoing instrument, and
acknowledged the same to be his free act and deed and the free act and deed of
the Mohegan Tribal Gaming Authority, before me.
___________________________________
Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
ss. Montville April 22, 1999
COUNTY OF NEW LONDON )
Personally appeared WILLIAM J. VELARDO, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed, before me.
____________________________________
Notary Public
My Commission Expires:
Approved pursuant to 25 U.S.C. (S) 81 this ____ day of _________, 1999.
UNITED STATES DEPARTMENT OF
INTERIOR
By: ________________________________
Its
20
<PAGE>
Exhibit 10.15
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made this 22nd day of April
1999 by and between the MOHEGAN TRIBAL GAMING AUTHORITY, an instrumentality of
THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, a sovereign Indian nation having an
address of One Mohegan Sun Boulevard, Uncasville, Connecticut 06382 (the
"Employer"), and MITCHELL GROSSINGER ETESS, residing at 21 Library Lane, Old
Lyme, Connecticut 06371 ("Executive").
WITNESSETH:
WHEREAS, the Employer owns and operates the Mohegan Sun Casino and plans to
develop a resort hotel, convention center and future amenities (as presently
existing and hereafter developed, the "Business"); and
WHEREAS, the Employer desires to continue to employ Executive in the
Business for a term of years and for an increase in compensation but subject to
certain restrictions, all as more fully set forth in this Agreement, and
Executive desires to continue to be employed by Employer on the terms and
conditions set forth herein; and
WHEREAS the Employer is desirous of assuring that Executive has the
authority to fully carry out his duties hereunder by being responsible to the
Employer, acting through its Chief Executive Officer.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
terms and conditions hereinafter set forth, and for other good and valuable
consideration, receipt whereof is specifically acknowledged, the parties hereto
hereby agree as follows:
<PAGE>
1. Nature of Services and Duties
(A) The Employer hereby agrees to continue to employ Executive as its
Executive Vice President, Marketing upon the terms set forth herein, and
Executive hereby accepts such continued employment.
(B) Executive shall perform such duties and services of an executive,
managerial and administrative nature as are customary for a marketing executive
vice president and which, consistent with the foregoing, the Employer may from
time to time through communication from the Chief Executive Officer hereafter
assign to him. Such duties shall include, but not be limited to, the creation
and execution of marketing plans, recruiting and hiring of executive marketing
staff, overseeing the creation and implementation of public relations and
advertising campaigns, developing marketing budget and staffing levels,
overseeing the development of special events and entertainment productions,
overseeing food and beverage operations, overseeing the hotel operations, and
participating at a senior executive level in the development of policy of the
Employer. Executive shall report exclusively to the Chief Executive Officer of
the Employer. The Employer shall not restrict, reduce or otherwise limit
Executive's responsibility or authority without his consent.
(C) Executive shall devote his best efforts and ability and all required
business time to the performance of his duties and responsibilities hereunder to
achieve the goals set forth in the employer's annual business plan. Executive
shall perform all of his duties to the Employer faithfully, competently, and
diligently.
2
<PAGE>
(D) The Employer shall indemnify, defend, and hold Executive harmless,
including the payment of reasonable attorney fees, if the Employer does not
directly provide Executive's defense, from and against all claims made by
anyone, including, but not limited to, a corporate entity, company, other
employee, agent, patron, tribal member, or any member of the general public with
respect to any claim that asserts as a basis, any acts, omissions, or other
circumstances involving the performance of Executive.
2. Effective Date
This Agreement shall be effective on the date it is approved by the
Secretary of the United States Department of Interior (or his designee) or on
the date that the Secretary of the United States Department of Interior (or his
designee) writes to either party, stating that such approval is not required.
3. Term
This Agreement shall govern Executive's employment with the Employer from
the Effective Date through and including December 31, 2004. This Agreement,
including this paragraph, shall automatically renew for an additional term of
five years unless either party shall notify the other of its intention to
terminate, or unless otherwise terminated as provided herein. Any such notice
shall be delivered not later than 120 days prior to the end of the then current
term and shall be effective at the end of such term, except as otherwise
provided herein.
3
<PAGE>
4. Base Annual Salary
Commencing with the Effective Date and until December 21, 1999, the
Employer shall continue to pay Executive his current Base annual Salary in equal
weekly installments. Commencing January 1, 2000, the Base Annual Salary shall
be increased to $485,000.00 payable in equal weekly installments of $9,326.92.
Commencing on January 1, 2001 and on each January 1 thereafter during the term
of this Agreement, the Base Annual Salary shall be increased in an amount
mutually agreed to by Executive and the Employer, which amount shall in no event
be less that 5% of the then current Base Annual Salary.
5. Annual Bonus
The Employer shall determine an annual bonus payable to Executive, the
amount of which shall be based upon the financial goals and the division goals
of the Employer, and the personal goals of Executive, all as established by
mutual agreement at the beginning of each fiscal year. The annual bonus for the
previous fiscal year shall be paid no later than October 31 of each year during
the term. The annual bonus for the period from the Effective Date through
September 30, 1999 shall be determined in accordance with the Mohegan Sun Bonus
Plan as is effect as of the Effective Date. The annual bonus for the period
from and after October 1, 1999, shall be not less than 33 1/3% of the Annual
Base Salary in effect for the period for which the annual bonus is to be paid.
4
<PAGE>
6. Life Insurance
(A) The Employer shall, during the term of this Agreement apply for and
procure insurance on the life of Executive as more fully described in subsection
(B) of this Paragraph 6. Upon request of Employer, Executive shall submit to
such medical examinations, supply such information, and execute such documents
as may be required by the Employer or insurance companies to whom the Employer
has made application.
(B) So long as Executive is employed hereunder, the Employer shall maintain
a life insurance policy on the life of Executive in the face amount equal to one
times the Executive's Annual Base Salary. Such policy shall be guaranteed
renewable during the term of this Agreement, including any extension hereof.
Executive shall be and remain the owner of such policy of life insurance and
shall enjoy all incidents of ownership, including the right to designate the
beneficiary and any right to borrow on such policy; provided, however, that the
beneficiary of such policy shall be the spouse of Executive, his child or
children, trustees for their benefit, his estate, or any one or more of them.
The Employer shall pay all premiums on such policy when due. In the event that
the Employer is unable to obtain such life insurance in the amount required or
is unable to obtain all or part of such insurance at standard rates, the
Employer shall at its option all or part of such insurance at non-standard rates
or shall self-insure in whole or in part.
In addition, Employer may at its option obtain key man insurance in amounts
determined by Employer, with the Employer as owner and beneficiary of
5
<PAGE>
such policy or policies, and Executive shall cooperate with Employer and shall
be available for any and all examinations made at Employer's request.
(C) The results of any examinations conducted pursuant to this section
shall at all times remain confidential and shall not be sought by or disclosed
to the Employer or to any third party other than the insurance carrier.
7. Reimbursement of Certain Expenses; Vacation; Medical Benefits
(A) The Employer will reimburse Executive for necessary and reasonable
business expenses incurred by him in the performance of his duties hereunder,
provided, that he shall obtain the approval for such expenditures in accordance
with the procedures adopted by the Employer from time to time and generally
applicable to its executive-level employees, including such procedures with
respect to submission of appropriate documentation and receipts. Failure by
Executive to follow such procedures shall entitle the Employer to refuse to
reimburse Executive for such expenses until such time as such failure has been
cured. It is understood and agreed that Employer shall not be responsible for
any expense of Executive for leasing or operation of a vehicle for Executive
(except that Executive shall be entitled to reimbursement for the expenses,
including mileage, actually incurred in connection of his use of his automobile
for the business-related purposes of the Employer), nor for any expense of
Executive for legal expenses or tax planning expenses incurred by Executive in
interpreting this or any other agreement between Executive and Employer.
(B) Executive shall be entitled to four weeks paid vacation per fiscal year
(at least two weeks of which must be taken in 14 consecutive days).
6
<PAGE>
(C) Executive shall participate in such employee benefit plans and programs
(including but not limited to medical insurance programs) as are now or may
hereafter be adopted by the Employer for its executive employees and their
families. Employer shall continue to provide such medical insurance coverage
for a period of one year after any termination by Employer of Executive's
employment hereunder if such termination was without Cause, as hereinafter
defined.
8. Disability; Termination
(A) If Executive shall become unable to perform all of his duties set forth
in paragraph 1 of this Agreement due to mental or physical disability, all
compensation and benefits provided in this Agreement shall continue to be paid
and provided in full for a period not exceeding 180 consecutive days. Upon
completion of such 180 days (or if Executive shall be disabled for an aggregate
period of 180 days in any period of 360 consecutive days by the same incapacity)
the Employer may, at its sole option, suspend Executive's employment until
Executive is recovered from such mental or physical disability (as reasonably
certified by a physician designated by the Employer). During any period of
suspension, Executive shall receive only such compensation as may be provided
under the disability insurance described in Paragraph 8(B).
(B) Employer, at the sole expense of Employer, shall provide disability
insurance coverage for Executive. Such policy shall provide payment of 50% of
Base Annual Salary commencing with termination of employment by reason of
physical or mental disability and for a period of two years if such disability
was the result of injury and to age 65 if such disability was the result of
physical or mental illness.
7
<PAGE>
In the event the Employer is unable to obtain disability insurance in the amount
required, or is unable to obtain all or part of such insurance at standard
rates, the Employer shall at its option obtain part or all of such insurance at
non-standard rates or shall self-insure in whole or in part.
(C) Subject to the provisions of this paragraph, the Employer may terminate
Executive's employment for Cause, which shall mean only that (i) Executive shall
be in violation of the restriction contained in paragraph 9 of this Agreement,
(ii) Executive shall fail to be, for a period of thirty (30) consecutive days,
licensed by the State of Connecticut or Class III gaming; (iii) Executive shall
have been convicted of any crime involving fraud, theft or moral turpitude, or
(iv) Executive shall have intentionally committed a material breach of his
obligations under this Agreement in order to cause the Employer, acting through
the Chief Executive Officer, to terminate Executive. In the event that Employer
desires to terminate Executive, the Employer shall give written notice
specifying the act(s) claimed to constitute cause and specifying an effective
date of termination, which date shall be no sooner than thirty (30) days after
the giving of such notice. Upon the written request of Executive, the
Management Board of the Employer shall meet with Executive to discuss the
reasons for termination and to provide Executive with an opportunity to respond.
In the event Executive fails to cure the act(s) claimed to constitute cause as
set forth in the notice of termination, Executive will cease employment with the
Employer effective upon the date provided in the notice of termination. If such
termination is for Cause, then
8
<PAGE>
Executive shall not be entitled to any further compensation from and after the
date of termination.
(D) Subject to the provisions of this paragraph, the Employer may terminate
Executive's employment other than for Cause, as defined above. In the event of
termination other than for Cause, Executive shall be paid, at termination, the
Annual Base Salary plus an annual bonus equal to one hundred percent (100%) of
the Annual Base Salary from the date of termination to the expiration date of
this Agreement (without regard to any renewal right after the date of
termination).
(E) In the event that Executive voluntarily terminates his employment
hereunder, Executive's employment shall cease as of the date provided in
Executive's notice to Employer of his voluntary termination, and thereafter,
provided that the Employer shall not then be in material breach of this
Agreement, Executive shall not be entitled to any further compensation
hereunder.
9. Covenants of Executive Not to Compete
Executive acknowledges that in the states of New York, Connecticut,
Massachusetts, Rhode Island, Vermont, New Hampshire and Maine (the "Restricted
Area") (i) the Employer is one of a limited number of entities engaged in the
Business; (ii) his services to the Employer are special and unique; (iii) his
work for the Employer has given him and will continue to give him access to
confidential information concerning the Employer; and (iv) he has the means to
support himself and his dependents other than by engaging in the Business of the
Employer and the provisions of this Paragraph 9 will not impair such ability.
Accordingly, in order to
9
<PAGE>
induce the Employer to enter into this Agreement, Executive covenants and agrees
that :
(A) So long as Executive is employed by Employer and, if Executive's
employment is voluntarily terminated by Executive or terminated by the Employer
for Cause for a period of twelve (12) months thereafter (the "Restricted
Period") Executive shall not, in the Restricted Area, entertain any solicitation
of employment and shall not compete in any manner, either directly or
indirectly, including, without limitation, as an employee or independent
contractor, investor, partner, shareholder, officer, director, principal, agent
or trustee of any entity engaged in casino gaming, in the Restricted Area,
without the express written approval of the Employer; provided, however, that
ownership of less than five percent (5%) of the shares of a publicly traded
corporation engaged in casino gaming shall not be deemed to violate this
Paragraph.
(B) During the Restricted Period, Executive shall not, directly or
indirectly, hire or solicit any employee of the Employer or encourage any such
employee to leave such employment.
10. Confidential Information
Executive agrees to receive Confidential Information (as hereinafter
defined) of the Employer in confidence, and not to disclose to others, assist
others in the application of, or use or his own gain, such information, or any
part thereof, unless and until it has become public knowledge, has come into the
possession of such other or others by legal and equitable means, or if required
to do so by order of a court of competent jurisdiction. Executive further
agrees that, upon termination of
10
<PAGE>
his employment with the Employer, all documents, records, notebook and similar
repositories of or containing Confidential Information, including copies
thereof, then in Executive's possession, whether prepared by him or others, will
be left with the Employer. For purposes of this Paragraph 10, "Confidential
Information" means information disclosed to Executive or known by Executive as a
consequence of or through his employment by the Employer, not generally known in
the industry in which the Employer is or may become engaged about the Employer's
Business, products, processes and services. Executive's obligations under this
Paragraph 10 shall survive any termination or expiration of this Agreement and
Executive's employment hereunder.
11. Rights and Remedies Upon Breach
Executive acknowledges and agrees that a violation of any provision of
Paragraph 9 or 10 of this Agreement (the "Restrictive Covenants") shall cause
irreparable harm to the Employer, and the Employer shall be entitled to specific
performance of this Agreement or an injunction without proof of special damages,
together with costs and attorney's fees incurred by the Employer in enforcing
its rights under this Agreement. If Executive breaches, or threatens to commit
a breach of any of the Restrictive Covenants, the Employer shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Employer under law or in equity:
11
<PAGE>
(A) The right and remedy to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction including, without limitation,
the right to entry against Executive of restraining orders and injunctions
(preliminary, mandatory, temporary and permanent), without proof of special
damages, against violations, threatened or actual, and whether or not then
continuing of such covenants, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Employer and
that money damages will not provide an adequate remedy to the Employer and
(B) The right and remedy to require Executive to account for and pay over
to the Employer all compensation, profits, monies, accruals, increments or other
benefits derived or received by Executive as the result of any transaction
constituting a breach of the Restrictive Covenants. The Employer may set off
any amounts due it under this Paragraph 11(B) against any amounts owed to
Executive under Paragraph 4, 5 or 8.
12. Notice
All notices hereunder shall be in writing. Any notice, request,
information, legal process, or other instrument to be given or served hereunder
by any party to another shall be deemed given or served hereunder by any party
to the other if either delivered personally or sent by prepaid registered or
certified mail, return receipt requested. Any such notice to the Employer shall
be sent to the address set forth in the introductory paragraph of this
Agreement, to the attention of the Chief Executive Officer. Any such notice to
Executive shall be sent to his residential address as set forth in the
introductory paragraph of this Agreement. Either party
12
<PAGE>
may change the address of notice purposes to the other party as provided in this
Paragraph.
13. Entire Agreement; Modification
Except as otherwise provided herein, this Agreement supersedes and cancels
any and all prior agreements between the parties hereto, express or implied,
relating to the subject matter hereof. This Agreement sets forth the entire
agreement of the parties hereto with respect to the subject matter hereof. This
Agreement may not be changed, modified, amended or altered except in a writing
signed by both parties.
14. Non-Waiver
The failure or refusal of either party to insist upon the strict
performance of any provision of this Agreement or to exercise any right in any
one or more instances or circumstances shall not be construed as a waiver or
relinquishment of such provision or right and shall in no way effect such
provision or right, nor shall such failure or refusal be deemed a custom or
practice contrary to such provision or right.
15. Severability
If any paragraph, term or provision of this Agreement shall be held or
determined to be unenforceable, the balance of this Agreement shall nevertheless
continue in full force and effect and unaffected by such holding or
determination. In addition, in any such event, the parties agree that it is
their intention and agreement that any such paragraph, term or provision which
is held or determined to be unenforceable as written, shall nonetheless be
enforced and binding to the
13
<PAGE>
fullest extent permitted by law as though such paragraph, term or provision
had been written in such a manner to such an extent as to be enforceable under
the circumstances. Without limitation of the foregoing, with respect to any
Restrictive Covenant contained herein, if it is determined that any such
provision is excessive as to duration or scope, it is intended that it
nonetheless be enforced for such shorter duration or without such narrower scope
as will render it enforceable.
16. Governing Law
This Agreement shall be governed and construed in accordance with the laws
of the State of Connecticut and the parties agree that, except as provided in
section 19, only the federal and state courts located in the State of
Connecticut shall have jurisdiction over this Agreement.
17. Limited Waiver of Sovereign Immunity
The Employer hereby waives its sovereign immunity from suit for claims by
the Executive for the enforcement of this Agreement and any remedies for breach
thereof under Connecticut law. Nothing herein shall limit the Executive's
right to proceed with any claims otherwise allowed under the laws of the Mohegan
Tribe of Indians of Connecticut. The Employer hereby consents to personal
jurisdiction and venue in any court of the State of Connecticut or any federal
court sitting in the State of Connecticut, and hereby waives any claim that it
may have that such court is an inconvenient forum for the purposes of any
proceeding arising under this Agreement as aforesaid and any requirement that
tribal remedies must be exhausted.
14
<PAGE>
18. Dispute Resolution
Except as otherwise provided herein, whenever during the term of this
Agreement, any disagreement or dispute arises between the parties as to the
interpretation of this Agreement or any rights or obligations arising hereunder,
including the licensing of Executive by the Tribal Gaming Commission, such
matters shall be resolved, whenever possible, by meeting and conferring. Any
party may request such a meeting by giving notice to the other, in which case
such other party shall make itself available within seven (7) days thereafter.
If such matters cannot be resolved within ten (10) days after such meeting,
either party may seek a resolution by binding arbitration in accordance with the
then prevailing rules of the American Arbitration Association (or any successor
thereto to the extent not inconsistent herewith), upon notice to the other party
of its intention to do so. The parties agree that in any such arbitration each
party shall be entitled to discovery as provided by the Federal Rules of Civil
Procedure. All hearings shall be conducted in Hartford County, Connecticut
within fifteen (15) days after the arbitrator is selected and shall be conducted
in his or her presence. The decision of the arbitrator will be final and
binding on the parties. The costs and expenses of the arbitration shall be
shared equally by the parties.
19. Gaming Disputes Court Jurisdiction
The Gaming Disputes Court of the Mohegan Tribe of Indians shall have
limited jurisdiction, in the event that a state or federal court denies
jurisdiction, to (a) enforce the requirement that the parties submit disputes to
arbitration as required by Paragraph 18 and (b) enforce the arbitration
decision as provided in Paragraph 18.
15
<PAGE>
20. Headings
The headings of this Agreement are inserted for convenience only and shall
not be considered in construction of the provisions hereof.
21. Assignment and Successors; Binding Effect
The rights and obligations of the Employer under this Agreement shall inure
to the benefit of and shall be binding upon the successors of the Employer and
may be assigned, for all or any part of the term hereof, by the Employer but the
Employer shall continue to be financially responsible to Executive hereunder.
Executive shall have no right to assign, transfer, pledge or otherwise encumber
any of the rights, nor to delegate any of the duties created by this Agreement
without prior written consent of the Employer. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Employer, its
successors and assigns, and Executive, his heirs and legal representatives.
22. Federal Approval Provisions
Consistent with the provisions of 25 U.S.C. (S) 81, the parties set forth
the following:
Party in Interest: Mohegan Tribal Gaming Authority
Address: One Mohegan Sun Boulevard, Uncasville, Connecticut 06382
Occupation: Instrumentality of an Indian Tribe
Party in Interest: Mitchell G. Etess
Address: 21 Library Lane, Old Lyme, Connecticut 06371
Occupation: Executive Vice President, Marketing, Mohegan Tribal Gaming
Authority
Fixed limited time to run: From the effective date up to and including December
31, 2004, subject to renewal for an additional five (5) years.
16
<PAGE>
Purpose: This Agreement governs the employment of Mitchell G. Etess as the
Executive Vice President, Marketing of the Mohegan Sun Casino.
Scope of Tribal Authority and Reason for Exercising that Authority: The
Chairman of the Management Board of the Mohegan Tribal Gaming Authority is
authorized to execute this Agreement pursuant to pursuant (i) Article XIII,
Section 1 of the Mohegan Tribe Constitution, (ii) An Ordinance Establishing the
Mohegan Tribal Gaming Authority, and (iii) Resolution No. _______ of the
Management Board dated April 22, 1999. The Chairman of the Management Board
exercises his authority in this instance because the Management Board has
determined that execution of this Agreement will further the economic
development objectives of the Mohegan Tribal Gaming Authority and of The Mohegan
Tribe of Indians of Connecticut.
Time and Place of Execution: This Agreement was executed on or about 2:45 PM
(time) on April 22, 1999, at Uncasville, Connecticut, for the particular
purposes set forth above.
Execution in Duplicate: This Agreement shall be executed in duplicate originals
for each party.
The undersigned agree that the foregoing Agreement is in compliance with 25
U.S.C. Section 81.
IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed
by the Chairman of its Management Board, duly authorized, and
17
<PAGE>
Executive has affixed his signature hereto, on the date and year first above
written.
Employer: Executive:
MOHEGAN TRIBAL MITCHELL G. ETESS
GAMING AUTHORITY
By: _____________________________ ___________________________________
Roland J. Harris, Chairman Mitchell G. Etess
Management Board
STATE OF CONNECTICUT )
ss. Montville April 22, 1999
COUNTY OF NEW LONDON )
Personally appeared ROLAND J. HARRIS, Chairman of the Management Board of
the MOHEGAN TRIBAL GAMING AUTHORITY, an instrumentality of The Mohegan Tribe of
Indians of Connecticut, signer and sealer of the foregoing instrument, and
acknowledged the same to be his free act and deed and the free act and deed of
the Mohegan Tribal Gaming Authority, before me.
___________________________________
Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
ss. Montville April 22, 1999
COUNTY OF NEW LONDON )
Personally appeared MITCHELL G. ETESS, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed, before me.
____________________________________
Notary Public
My Commission Expires:
18
<PAGE>
Approved pursuant to 25 U.S.C. (S) 81 this ____ day of _________, 1999.
UNITED STATES DEPARTMENT OF
INTERIOR
By: ________________________________
Its
19
<PAGE>
Exhibit 10.16
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") made this 22nd day of April
1999 by and between the MOHEGAN TRIBAL GAMING AUTHORITY, an instrumentality of
THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, a sovereign Indian nation having an
address of One Mohegan Sun Boulevard, Uncasville, Connecticut 06382 (the
"Employer"), and JEFFREY E. HARTMANN, residing at 138 Payer Lane, Mystic,
Connecticut 06355 ("Executive").
WITNESSETH:
WHEREAS, the Employer owns and operates the Mohegan Sun Casino and plans to
develop a resort hotel, convention center and future amenities (as presently
existing and hereafter developed, the "Business"); and
WHEREAS, the Employer desires to continue to employ Executive in the
Business for a term of years and for an increase in compensation but subject to
certain restrictions, all as more fully set forth in this Agreement, and
Executive desires to continue to be employed by Employer on the terms and
conditions set forth herein; and
WHEREAS the Employer is desirous of assuring that Executive has the
authority to fully carry out his duties hereunder by being responsible to the
Employer, acting through its Chief Executive Officer.
NOW, THEREFORE, in consideration of the promises and the mutual covenants,
terms and conditions hereinafter set forth, and for other good and valuable
consideration, receipt whereof is specifically acknowledged, the parties hereto
hereby agree as follows:
<PAGE>
1. Nature of Services and Duties
(A) The Employer hereby agrees to continue to employ Executive as its
Executive Vice President, Finance and Chief Financial Officer upon the terms set
forth herein, and Executive hereby accepts such continued employment.
(B) Executive shall perform such duties and services of an executive,
managerial and administrative nature as are customary for an Executive Vice
President, Finance and which, consistent with the foregoing, the Employer may
from time to time through communication from the Chief Executive Officer
hereafter assign to him. Such duties shall include, but not be limited to, cash
management, investments with financial institutions, banking relationships, and
administering the property-level financial functions and supervising the
financial accounting, casino accounting and information systems departments.
Executive shall report exclusively to the Chief Executive Officer of the
Employer. The Employer shall not restrict, reduce or otherwise limit
Executive's responsibility or authority without his consent.
(C) Executive shall devote his best efforts and ability and his entire
business time to the performance of his duties and responsibilities hereunder to
achieve the goals set forth in the employer's annual business plan. Executive
shall perform all of his duties to the Employer faithfully, competently, and
diligently.
(D) The Employer shall indemnify, defend, and hold Executive harmless,
including the payment of reasonable attorney fees, if the Employer does not
directly provide Executive's defense, from and against all claims made by
anyone, including, but not limited to, a corporate entity, company, other
employee, agent, patron,
2
<PAGE>
tribal member, or any member of the general public with respect to any claim
that asserts as a basis, any acts, omissions, or other circumstances involving
the performance of Executive.
2. Effective Date
This Agreement shall be effective on the date it is approved by the
Secretary of the United States Department of Interior (or his designee) or on
the date that the Secretary of the United States Department of Interior (or his
designee) writes to either party, stating that such approval is not required.
3. Term
This Agreement shall govern Executive's employment with the Employer from
the Effective Date through and including December 31, 2004. This Agreement,
including this paragraph, shall automatically renew for an additional term of
five years unless either party shall notify the other of its intention to
terminate, or unless otherwise terminated as provided herein. Any such notice
shall be delivered not later than 120 days prior to the end of the then current
term and shall be effective at the end of such term, except as otherwise
provided herein.
4. Base Annual Salary
Commencing with the Effective Date and until December 21, 1999, the
Employer shall continue to pay Executive his current Base annual Salary in equal
weekly installments. Commencing January 1, 2000, the Base Annual Salary shall
be increased to $435,000.00 payable in equal weekly installments of $8,365.38.
Commencing on January 1, 2001 and on each January 1 thereafter during the term
of this Agreement, the Base Annual Salary shall be increased in an amount
3
<PAGE>
mutually agreed to by Executive and the Employer, which amount shall in no event
be less that 5% of the then current Base Annual Salary.
5. Annual Bonus
The Employer shall determine an annual bonus payable to Executive, the
amount of which shall be based upon the financial goals and the division goals
of the Employer, and the personal goals of Executive, all as established by
mutual agreement at the beginning of each fiscal year. The annual bonus for the
previous fiscal year shall be paid no later than October 31 of each year during
the term. The annual bonus for the period from the Effective Date through
September 30, 1999 shall be determined in accordance with the Mohegan Sun Bonus
Plan as in effect as of the Effective Date. The annual bonus for the period
from and after October 1, 1999, shall be not less than 33 1/3% of the Annual
Base Salary in effect for the period for which the annual bonus is to be paid.
6. Life Insurance
(A) The Employer shall, during the term of this Agreement apply for and
procure insurance on the life of Executive as more fully described in subsection
(B) of this Paragraph 6. Upon request of Employer, Executive shall submit to
such medical examinations, supply such information, and execute such documents
as may be required by the Employer or insurance companies to whom the Employer
has made application.
(B) So long as Executive is employed hereunder, the Employer shall maintain
a life insurance policy on the life of Executive in the face amount equal to one
times Executive's Annual Base Salary. Such policy shall be guaranteed
4
<PAGE>
renewable during the term of this Agreement, including any extension hereof.
Executive shall be and remain the owner of such policy of life insurance and
shall enjoy all incidents of ownership, including the right to designate the
beneficiary and any right to borrow on such policy; provided, however, that the
beneficiary of such policy shall be the spouse of Executive, his child or
children, trustees for their benefit, his estate, or any one or more of them.
The Employer shall pay all premiums on such policy when due. In the event that
the Employer is unable to obtain such life insurance in the amount required or
is unable to obtain all or part of such insurance at standard rates, the
Employer shall at its option all or part of such insurance at non-standard rates
or shall self-insure in whole or in part.
In addition, Employer may at its option obtain key man insurance in amounts
determined by Employer, with the Employer as owner and beneficiary of such
policy or policies, and Executive shall cooperate with Employer and shall be
available for any and all examinations made at Employer's request.
(C) The results of any examinations conducted pursuant to this section
shall at all times remain confidential and shall not be sought by or disclosed
to the Employer or to any third party other than the insurance carrier.
7. Reimbursement of Certain Expenses; Vacation; Medical Benefits
(A) The Employer will reimburse Executive for necessary and reasonable
business expenses incurred by him in the performance of his duties hereunder,
provided, that he shall obtain the approval for such expenditures in accordance
with the procedures adopted by the Employer from time to time and generally
applicable to its executive-level employees, including such procedures with
respect to
5
<PAGE>
submission of appropriate documentation and receipts. Failure by Executive to
follow such procedures shall entitle the Employer to refuse to reimburse
Executive for such expenses until such time as such failure has been cured. It
is understood and agreed that Employer shall not be responsible for any expense
of Executive for leasing or operation of a vehicle for Executive (except that
Executive shall be entitled to reimbursement for the expenses, including
mileage, actually incurred in connection of his use of his automobile for the
business-related purposes of the Employer), nor for any expense of Executive for
legal expenses or tax planning expenses incurred by Executive in interpreting
this or any other agreement between Executive and Employer.
(B) Executive shall be entitled to four weeks paid vacation per fiscal year
(at least two weeks of which must be taken in 14 consecutive days).
(C) Executive shall participate in such employee benefit plans and programs
(including but not limited to medical insurance programs) as are now or may
hereafter be adopted by the Employer for its executive employees and their
families. Employer shall continue to provide such medical insurance coverage
for a period of one year after any termination by Employer of Executive's
employment hereunder if such termination was without Cause, as hereinafter
defined.
8. Disability; Termination
(A) If Executive shall become unable to perform all of his duties set forth
in paragraph 1 of this Agreement due to mental or physical disability, all
compensation and benefits provided in this Agreement shall continue to be paid
and provided in full for a period not exceeding 180 consecutive days. Upon
completion of
6
<PAGE>
such 180 days (or if Executive shall be disabled for an aggregate period of 180
days in any period of 360 consecutive days by the same incapacity) the Employer
may, at its sole option, suspend Executive's employment until Executive is
recovered from such mental or physical disability (as reasonably certified by a
physician designated by the Employer). During any period of suspension,
Executive shall receive only such compensation as may be provided under the
disability insurance described in paragraph 8(B).
(B) Employer, at the sole expense of Employer, shall provide disability
insurance coverage for Executive. Such policy shall provide payment of 50% of
Base Annual Salary commencing with termination of employment by reason of
physical or mental disability and for a period of two years if such disability
was the result of injury and to age 65 if such disability was the result of
physical or mental illness. In the event the Employer is unable to obtain
disability insurance in the amount required, or is unable to obtain all or part
of such insurance at standard rates, the Employer shall at its option obtain
part or all of such insurance at non-standard rates or shall self-insure in
whole or in part.
(C) Subject to the provisions of this paragraph, the Employer may terminate
Executive's employment for Cause, which shall mean only that (i) Executive shall
be in violation of the restriction contained in Paragraph 9 of this Agreement,
(ii) Executive shall fail to be, for a period of thirty (30) consecutive days,
licensed by the State of Connecticut or Class III gaming; (iii) Executive shall
have been convicted of any crime involving fraud, theft or moral turpitude, or
(iv) Executive shall have intentionally committed a material breach of his
7
<PAGE>
obligations under this Agreement in order to cause the Employer, acting through
the Chief Executive Officer, to terminate Executive.
In the event that Employer desires to terminate Executive, the Employer shall
give written notice specifying the act(s) claimed to constitute cause and
specifying an effective date of termination, which date shall be no sooner than
thirty (30) days after the giving of such notice. Upon the written request of
Executive, the Management Board of the Employer shall meet with Executive to
discuss the reasons for termination and to provide Executive with an opportunity
to respond. In the event Executive fails to cure the act(s) claimed to
constitute cause as set forth in the notice of termination, Executive will cease
employment with the Employer effective upon the date provided in the notice of
termination. If such termination is for Cause, then Executive shall not be
entitled to any further compensation from and after the date of termination.
(D) Subject to the provisions of this paragraph, the Employer may terminate
Executive's employment other than for Cause, as defined above. In the event of
termination other than for Cause, Executive shall be paid, at termination, the
Annual Base Salary plus an annual bonus equal to one hundred percent (100%) of
the Annual Base Salary from the date of termination to the expiration date of
this Agreement (without regard to any renewal right after the date of
termination).
(E) In the event that Executive voluntarily terminates his employment
hereunder, Executive's employment shall cease as of the date provided in
Executive's notice to Employer of his voluntary termination, and thereafter,
8
<PAGE>
provided that the Employer shall not then be in material breach of this
Agreement, Executive shall not be entitled to any further compensation
hereunder.
9. Covenants of Executive Not to Compete
Executive acknowledges that in the states of New York, Connecticut,
Massachusetts, Rhode Island, Vermont, New Hampshire and Maine (the "Restricted
Area") (i) the Employer is one of a limited number of entities engaged in the
Business; (ii) his services to the Employer are special and unique; (iii) his
work for the Employer has given him and will continue to give him access to
confidential information concerning the Employer; and (iv) he has the means to
support himself and his dependents other than by engaging in the Business of the
Employer and the provisions of this Paragraph 9 will not impair such ability.
Accordingly, in order to induce the Employer to enter into this Agreement,
Executive covenants and agrees that:
(A) So long as Executive is employed by Employer and, if Executive's
employment is voluntarily terminated by Executive or terminated by the Employer
for Cause for a period of twelve (12) months thereafter (the "Restricted
Period") Executive shall not, in the Restricted Area, entertain any solicitation
of employment and shall not compete in any manner, either directly or
indirectly, including, without limitation, as an employee or independent
contractor, investor, partner, shareholder, officer, director, principal, agent
or trustee of any entity engaged in casino gaming, in the Restricted Area,
without the express written approval of the Employer; provided, however, that
ownership of less than five
9
<PAGE>
percent (5%) of the shares of a publicly traded corporation engaged in casino
gaming shall not be deemed to violate this Paragraph.
(B) During the Restricted Period, Executive shall not, directly or
indirectly, hire or solicit any employee of the Employer or encourage any such
employee to leave such employment.
10. Confidential Information
Executive agrees to receive Confidential Information (as hereinafter
defined) of the Employer in confidence, and not to disclose to other, assist
others in the application of, or use for his own gain, such information, or any
part thereof, unless and until it has become public knowledge, has come into the
possession of such other or others by legal and equitable means, or if required
to do so by order of a court of competent jurisdiction. Executive further
agrees that, upon termination of his employment with the Employer, all
documents, records, notebook and similar repositories of or containing
Confidential Information, including copies thereof, then in Executive's
possession, whether prepared by him or others, will be left with the Employer.
For purposes of this Paragraph 10, "Confidential Information" means information
disclosed to Executive or known by Executive as a consequence of or through his
employment by the Employer, not generally known in the industry in which the
Employer is or may become engaged about the Employer's Business, products,
processes and services. Executive's obligations under this Paragraph 10 shall
survive any termination or expiration of this Agreement and Executive's
employment hereunder.
10
<PAGE>
11. Rights and Remedies Upon Breach
Executive acknowledges and agrees that a violation of any provision of
Paragraph 9 or 10 of this Agreement (the "Restrictive Covenants") shall cause
irreparable harm to the Employer, and the Employer shall be entitled to specific
performance of this Agreement or an injunction without proof of special damages,
together with costs and attorney's fees incurred by the Employer in enforcing
its rights under this Agreement. If Executive breaches, or threatens to commit
a breach of any of the Restrictive Covenants, the Employer shall have the
following rights and remedies, each of which rights and remedies shall be
independent of the other and severally enforceable, and all of which rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Employer under law or in equity:
(A) The right and remedy to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction including, without limitation,
the right to entry against Executive of restraining orders and injunctions
(preliminary, mandatory, temporary and permanent), without proof of special
damages, against violations, threatened or actual, and whether or not then
continuing of such covenants, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Employer and
that money damages will not provide an adequate remedy to the Employer and
(B) The right and remedy to require Executive to account for and pay over
to the Employer all compensation, profits, monies, accruals, increments or other
benefits derived or received by Executive as the result of any transaction
11
<PAGE>
constituting a breach of the Restrictive Covenants. The Employer may set off
any amounts due it under this Paragraph 11(B) against any amounts owed to
Executive under Paragraph 4, 5 or 8.
12. Notice
All notices hereunder shall be in writing. Any notice, request,
information, legal process, or other instrument to be given or served hereunder
by any party to another shall be deemed given or served hereunder by any party
to the other if either delivered personally or sent by prepaid registered or
certified mail, return receipt requested. Any such notice to the Employer shall
be sent to the address set forth in the introductory paragraph of this
Agreement, to the attention of the Chief Executive Officer. Any such notice to
Executive shall be sent to his residential address as set forth in the
introductory paragraph of this Agreement. Either party may change the address
of notice purposes to the other party as provided in this Paragraph.
13. Entire Agreement; Modification
Except as otherwise provided herein, this Agreement supersedes and cancels
any and all prior agreements between the parties hereto, express or implied,
relating to the subject matter hereof. This Agreement sets forth the entire
agreement of the parties hereto with respect to the subject matter hereof. This
Agreement may not be changed, modified, amended or altered except in a writing
signed by both parties.
12
<PAGE>
14. Non-Waiver
The failure or refusal of either party to insist upon the strict
performance of any provision of this Agreement or to exercise any right in any
one or more instances or circumstances shall not be construed as a waiver or
relinquishment of such provision or right and shall in no way effect such
provision or right, nor shall such failure or refusal be deemed a custom or
practice contrary to such provision or right.
15. Severability
If any paragraph, term or provision of this Agreement shall be held or
determined to be unenforceable, the balance of this Agreement shall nevertheless
continue in full force and effect and unaffected by such holding or
determination. In addition, in any such event, the parties agree that it is
their intention and agreement that any such paragraph, term or provision which
is held or determined to be unenforceable as written, shall nonetheless be
enforced and binding to the fullest extent permitted by law as though such
paragraph, term or provision had been written in such a manner to such an extent
as to be enforceable under the circumstances. Without limitation of the
foregoing, with respect to any Restrictive Covenant contained herein, if it is
determined that any such provision is excessive as to duration or scope, it is
intended that it nonetheless be enforced for such shorter duration or without
such narrower scope as will render it enforceable.
16. Governing Law
This Agreement shall be governed and construed in accordance with the laws
of the State of Connecticut and the parties agree that, except as provided in
Section
13
<PAGE>
19, only the federal and state courts located in the State of Connecticut shall
have jurisdiction over this Agreement.
17. Limited Waiver of Sovereign Immunity
The Employer hereby waives its sovereign immunity from suit for claims by
the Executive for the enforcement of this Agreement and any remedies for breach
thereof under Connecticut law. Nothing herein shall limit the Executive's right
to proceed with any claims otherwise allowed under the laws of the Mohegan Tribe
of Indians of Connecticut. The Employer hereby consents to personal jurisdiction
and venue in any court of the State of Connecticut or any federal court sitting
in the State of Connecticut, and hereby waives any claim that it may have that
such court is an inconvenient forum for the purposes of any proceeding arising
under this Agreement as aforesaid and any requirement that tribal remedies must
be exhausted.
18. Dispute Resolution
Except as otherwise provided herein, whenever during the term of this
Agreement, any disagreement or dispute arises between the parties as to the
interpretation of this Agreement or any rights or obligations arising hereunder,
including the licensing of Executive by the Tribal Gaming Commission, such
matters shall be resolved, whenever possible, by meeting and conferring. Any
party may request such a meeting by giving notice to the other, in which case
such other party shall make itself available within seven (7) days thereafter.
If such matters cannot be resolved within ten (10) days after such meeting,
either party may seek a resolution by binding arbitration in accordance with the
then prevailing rules of the
14
<PAGE>
American Arbitration Association (or any successor thereto to the extent not
inconsistent herewith), upon notice to the other party of its intention to do
so. The parties agree that in any such arbitration each party shall be entitled
to discovery as provided by the Federal Rules of Civil Procedure. All hearings
shall be conducted in Hartford County, Connecticut within fifteen (15) days
after the arbitrator is selected and shall be conducted in his or her presence.
The decision of the arbitrator will be final and binding on the parties. The
costs and expenses of the arbitration shall be shared equally by the parties.
19. Gaming Disputes Court Jurisdiction
The Gaming Disputes Court of the Mohegan Tribe of Indians shall have
limited jurisdiction, in the event that a state or federal court denies
jurisdiction, to (a) enforce the requirement that the parties submit disputes to
arbitration as required by paragraph 18 and (b) enforce the arbitration
decision as provided in Paragraph 18.
20. Headings
The headings of this Agreement are inserted for convenience only and shall
not be considered in construction of the provisions hereof.
21. Assignment and Successors; Binding Effect
The rights and obligations of the Employer under this Agreement shall inure
to the benefit of and shall be binding upon the successors of the Employer and
may be assigned, for all or any part of the term hereof, by the Employer but the
Employer shall continue to be financially responsible to Executive hereunder.
Executive shall have no right to assign, transfer, pledge or otherwise encumber
any
15
<PAGE>
of the rights, nor to delegate any of the duties created by this Agreement
without prior written consent of the Employer. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Employer, its
successors and assigns, and Executive, his heirs and legal representatives.
16
<PAGE>
22. Federal Approval Provisions
Consistent with the provisions of 25 U.S.C. (S) 81, the parties set forth
the following:
Party in Interest: Mohegan Tribal Gaming Authority
Address: One Mohegan Sun Boulevard, Uncasville, Connecticut 06382
Occupation: Instrumentality of an Indian Tribe
Party in Interest: Jeffrey E. Hartmann
Address: 138 Payer Lane, Mystic, Connecticut 06355
Occupation: Executive Vice President, Finance and Chief Financial Officer,
Mohegan Tribal Gaming Authority
Fixed limited time to run: From the effective date up to and including December
31, 2004, subject to renewal for an additional five (5) years.
Purpose: This Agreement governs the employment of Jeffrey E. Hartmann as the
Executive Vice President, Finance and Chief Financial Officer of the Mohegan Sun
Casino.
Scope of Tribal Authority and Reason for Exercising that Authority: The
Chairman of the Management Board of the Mohegan Tribal Gaming Authority is
authorized to execute this Agreement pursuant to pursuant (i) Article XIII,
Section 1 of the Mohegan Tribe Constitution, (ii) An Ordinance Establishing the
Mohegan Tribal Gaming Authority, and (iii) Resolution No. _______ of the
Management Board dated April 22, 1999. The Chairman of the Management Board
exercises his authority in this instance because the Management Board has
determined that execution of this Agreement will further the economic
development objectives of the Mohegan Tribal Gaming Authority and of The Mohegan
Tribe of Indians of Connecticut.
Time and Place of Execution: This Agreement was executed on or about 2:45 PM
(time) on April 22, 1999, at Uncasville, Connecticut, for the particular
purposes set forth above.
Execution in Duplicate: This Agreement shall be executed in duplicate originals
for each party.
The undersigned agree that the foregoing Agreement is in compliance with 25
U.S.C. Section 81.
17
<PAGE>
IN WITNESS WHEREOF, the Employer has caused this Agreement to be executed
by the Chairman of its Management Board, duly authorized, and Executive has
affixed his signature hereto, on the date and year first above written.
Employer: Executive:
MOHEGAN TRIBAL JEFFREY E. HARTMANN
GAMING AUTHORITY
By: _____________________________ ___________________________________
Roland J. Harris, Chairman Jeffrey E. Hartmann
Management Board
STATE OF CONNECTICUT )
ss. Montville ) April 22, 1999
COUNTY OF NEW LONDON )
Personally appeared ROLAND J. HARRIS, Chairman of the Management Board of
the MOHEGAN TRIBAL GAMING AUTHORITY, an instrumentality of The Mohegan Tribe of
Indians of Connecticut, signer and sealer of the foregoing instrument, and
acknowledged the same to be his free act and deed and the free act and deed of
the Mohegan Tribal Gaming Authority, before me.
___________________________________
Notary Public
My Commission Expires:
STATE OF CONNECTICUT )
ss. Montville ) April 22, 1999
COUNTY OF NEW LONDON )
Personally appeared JEFFREY E. HARTMANN, signer and sealer of the foregoing
instrument, and acknowledged the same to be his free act and deed, before me.
____________________________________
Notary Public
My Commission Expires:
Approved pursuant to 25 U.S.C. (S) 81 this ____ day of _________, 1999.
UNITED STATES DEPARTMENT OF
INTERIOR
By: ________________________________
Its
18
