Exhibit 10.1


 


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT


 


This Amended and Restated Employment Agreement (“Agreement”)
is made as of the    day of January    ,
2008 with the intent it be effective as of October 1, 2007 (the “Effective
Date”) by and between OpBiz, LLC
(“Company”), a wholly owned subsidiary of
MezzCo, LLC (“MezzCo), and Michael Mecca (“Executive”).


 


BACKGROUND


 


The Company and the Executive are parties to an Employment Agreement
dated as of May 11, 2003 (the “Former Agreement”);
and


 


The Executive, at the request of Company, has
agreed to continue his employment with the Company on the terms and conditions set forth herein; and


 


The parties to this Agreement desire to replace
the Former Agreement as of the Effective Date with this Agreement, and the Former Agreement shall no
longer be of any force or effect.


 


NOW, THEREFORE,
in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the
Company and the Executive (each individually a “Party”
and together the “Parties”) agree
as follows.


 


SECTION 1.         Employment. The Company agrees to employ the Executive
and the Executive agrees to be employed by the Company in the capacity of
President and Chief Executive Officer, as set forth herein, reporting directly
to the Company’s Board of Managers. Until the expiration or sooner termination
of this Agreement pursuant to Section 4 below, Executive shall also
enjoy a seat on the Board of Managers of the Company. Executive warrants and represents that, to the extent such
employment requires licensing by the Nevada Gaming Commission, Executive
is able to secure or has secured such licensing and there are no threatened or
pending actions against Executive which would compromise such licensing.


 


SECTION 2.         Term. Executive’s employment with the Company
pursuant to the Former Agreement commenced May 11,
2003 (“Services Commencement Date”) and shall be extended to March 31,
2013. This Agreement shall automatically renew for successive five (5) year periods following the expiration of the Term
unless either Party provides notice to the other Party at least ninety (90)
days prior to the end of the then current term of its intention not to so renew.


 


SECTION 3.         Performance of Duties. The Executive
agrees to devote his full-time efforts to the discharge of his responsibilities
and duties under this Agreement and such other hours and efforts as may be reasonably necessary. From and after the
Effective Date until the expiration or sooner termination of this
Agreement in accordance with Section 4 below, Executive shall not,
without the consent of the Company, directly or indirectly, provide services to
or for any person or firm for compensation, or engage in any practice that
competes


 


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with the interest of the Company. Provided that such activities do not
interfere with the foregoing, the Executive shall not be precluded from
engaging in charitable and community affairs and managing his personal
investments.


 


SECTION 4.         Termination of Agreement. The Company shall have the right to terminate
this Agreement and the employment of Executive (i) at any time and without
liability for “Cause” (defined below); (ii) at any time without “Cause”
upon the payment to Executive of twelve (12) months of the then Base Pay
(defined below); or (iii) upon death or Disability, as defined below; provided however, Executive shall
have the right to terminate this Agreement and the employment of
Executive (i) without liability and at any time for “Good Reason” (defined
below); and (ii) at any time without “Good
Reason” upon ninety (90) days prior written notice to the Company.


 


For purposes of this Agreement, “Cause” is defined as Executive’s (i) loss
of key license issued by the Nevada Gaming Commission; (ii) conviction of
a felony; (iii) material breach of this Agreement; provided, however, in
the event of such breach, the Company shall give to the Executive written
notice of such breach, and the Executive shall have ten (10) business days
to cure such breach; or (iv) engagement
in any unauthorized, morally-bankrupt activity which has a material
adverse effect on the Company’s name, reputation or goodwill in the Las Vegas,
Nevada community, such determination being made by a two-thirds (2/3) super
majority vote of the Board of Managers, acting reasonably. It is acknowledged
by Executive that the Executive Committee of the Board of Managers has
identified a need for a Chief Operating Officer and Finance Executive for the Company and that the Executive Committee has
directed Executive, in consultation with and subject in each case to the
prior reasonable approval of the Executive Committee, to develop appropriate
job descriptions, source and hire such positions as a material responsibility
and duty of Executive during the six (6) month period following execution
hereof, a failure to do so being a material breach of this Agreement.


 


For purposes of this Agreement, “Good Reason” is defined as (i) the
assignment to Executive of duties incommensurate with his status as President
and Chief Executive Officer, or any material reduction of the Executive’s
duties, authority or responsibilities or any reduction, whether material or
not, in Executive’s title or reporting responsibilities, relative to Executive’s
duties, authority, responsibilities, title or reporting responsibilities as in
effect immediately prior to such reduction, except if agreed to in writing by
the Executive; (ii) a reduction by the Company
in the Executive’s Base Pay, or Bonus as in effect immediately prior to such
reduction; (iii) the relocation of the Executive to a facility or
location more than thirty-five (35) miles from the Executive’s then present
location, without the Executive’s written consent; or (iv) any material
breach of this Agreement by the Company; provided, however, in the event of a
material breach of this Agreement by the Company, the Executive shall give the
Company written notice of such material
breach and the Company shall have ten (10) business days to cure such
breach.


 


In the event of any termination of the Executive’s employment for Good
Reason or Without Cause, the Executive
shall be under no obligation to seek other employment, and except


 


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as specifically set forth in Section 6 below, there shall not be
offset against amounts due to the Executive any remuneration attributable to
any subsequent employment that the Executive may obtain.


 


The Executive’s employment shall be terminated
immediately in the event of his death or Disability. In the event of a termination due to the Executive’s
death or Disability, the Executive or his estate, as the case may be, shall be
entitled, in lieu of any other compensation whatsoever, to:


 


(a)           Base Pay at the rate in effect at the time of Executive’s termination
until the date of death or Disability;


 


(b)                  any annual Bonus
awarded but not yet paid;


 


(c)           immediate vesting of any deferred compensation or Bonuses, including interest or other credits on the deferred amounts
to the extent provided in the plans or programs providing for deferral;


 


(d)                  reimbursement of
expenses incurred but not paid prior to such termination of employment; and


 


(e)           such rights to other benefits as may be provided
in applicable plans and programs
of the Company, including, without limitation, applicable employee benefit
plans and programs, according to the terms and provisions of such plans and
programs.


 


“Disability” shall mean a physical or mental incapacity that will prevent the
Executive from performing the essential functions of his position with the
Company for a period of one-hundred and eighty days (180) or more days as
determined (a) in accordance with any long-term disability plan provided
by the Company of which the Executive is a participant, or (b) by the
following procedure: The Executive agrees to submit to a medical examination by
a physician, board certified in his specialty and licensed by the Nevada State
Board of Medical Examiners and jointly selected by the Company and Executive to
determine whether a Disability exists. In addition, the Executive may submit to
the Company documentation of a Disability, or lack thereof, from a licensed
healthcare professional of his sole choice. Following a determination of a
Disability or lack of Disability by the Company’s or the Executive’s licensed
healthcare professional, the other Party
may submit subsequent documentation relating to the existence of a Disability
from a licensed healthcare professional selected by such other Party. In the
event that the medical opinions of such licensed healthcare professionals
conflict, such licensed healthcare professionals
shall appoint a third licensed healthcare professional to examine the
Executive, and the opinion of such third licensed healthcare
professional shall be dispositive.


 


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Until such time as Executive’s employment is terminated in accordance
with the terms of this Agreement either without Cause, For Cause or death or
Disability, Executive shall continue to receive Base pay, Bonus and other
compensation as set forth in this Agreement.


 


SECTION 5.         Compensation. From and after the Effective Date and until the expiration or sooner
termination of this Agreement in accordance with the terms and conditions set
forth in Section 4 above, the Company shall pay or provide to the
Executive as compensation for the services of the Executive:


 


(a)                                     An annual base salary of $571,725 per year,
payable in such installments as the Company may provide, but not less than once
per month; such amount to be adjusted annually by the Board of Managers,
commencing no later than March 31, 2008 and then annually thereafter (but
in any event no less than $571,725 per annum) (the “Base Pay”); and


 


(b)                                    A performance based bonus payment representing
a percentage of the Base Pay received by Executive for such preceding twelve
(12) month period (“Bonus”), following determination of the Bonus by the Board
of Managers based on the following two (2) criteria and performance
levels:


 


(i)                                     EBITDA Bonus: One-half of the Bonus shall be determined on
an incremental, pro rata basis such that the Executive’s EBITDA Bonus will equal, for example, fifty
percent (50%) of the Executive’s Base Pay in the event that one hundred
percent (100%) of projected EBITDA is achieved, fifty-five percent (55%) of the
Executive’s Base Pay in the event that one hundred ten percent (110%) of
projected EBITDA is achieved, or one hundred percent(100%) of the Executive’s
Base Pay in the event that two hundred percent (200%) of projected EBITDA is
achieved, etc. Executive will only receive an EBITDA Bonus in the event that at
least one hundred percent (100%) of the projected EBITDA, as mutually agreed upon by Executive and Board of
Managers, is achieved.


 


(ii)                                 Individual Bonus: One half of the Bonus shall be determined on
an incremental, pro rata basis such that the Executive’s Individual Bonus will
equal, for example, fifty percent (50%) of the Executive’s Base Pay in the
event that one hundred percent (100%) of Executive’s individual goals are achieved as determined by the Board of
Managers.


 


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(iii)                              In the event of any termination other than a
termination by the Company of the Executive for ‘Cause,” the Company shall pay
to Executive all accrued but unpaid Bonus up to such date of termination, as
determined by the Board of Managers as adjusted on a pro rata basis.


 


(c)             Stock Options. Subject to the approval of Nevada Gaming and any
other applicable regulatory approvals, Executive has received stock options
representing three percent (3%) of the outstanding equity of MezzCo, LLC, in
which Executive is fully vested. Such options shall be subject to and governed
by the Class B Unit Option Plan which is incorporated by reference into
this Agreement.


 


During the Term of this Agreement and
thereafter, the Company shall retain a right of first refusal (the “ROFR”) with
respect to any sale by Executive of any shares in the Company. In order to
exercise the ROFR, the Company shall have the option, within thirty (30) days
after receiving the terms and conditions of a bona fide third party offer for
all or a portion of shares owned by Executive, to purchase such shares at the
cash equivalent of such offer.


 


(d)            Employee Benefits. During Executive’s employment with the Company,
Executive shall be eligible to participate in (i) all employee benefit
plans currently and hereafter maintained by the Company for senior management,
including, without limitation, life, group health, disability insurance, incentive,
profit sharing, savings, deferred compensation and retirement plans, practices,
policies and programs according to their terms, and; (ii) such other
employee benefits as are set forth in this Agreement.


 


SECTION 6.         Health Insurance. During the remaining Term of this Agreement,
and until the sooner to occur of (a) twelve
(12) months following the expiration or sooner termination of this
Agreement; and (b) Employee securing subsequent employment, the Company
shall provide to Executive and his wife, Sandra Mecca, family health insurance
that is to be one hundred percent (100%)
funded by the Company (i.e., no
deductibles or out of pocket expenses), or reimburse Executive for all costs
incurred by Executive to the extent Company fails to provide the same.
Additionally, once per year, Executive and his wife may obtain, at the Company’s
expense, a comprehensive physical
examination at the clinic or health care facility of Executive’s choice.


 


SECTION 7.         Expenses. During the Term of this Agreement, the
Company will pay or reimburse Executive for
all travel, entertainment and other expenses incurred by Executive in the furtherance
of or in connection with the performance of Executive’s duties hereunder.


 


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SECTION 8.         Disability
Insurance. During the Term of this Agreement, the Company will obtain the greatest amount of disability
insurance reasonably available to Executive.


 


SECTION 9.         Life Insurance. During the Term of this Agreement, the
Company will obtain term life insurance for Executive in an amount equal to ten
(10) times the amount of Executive’s Base Salary, payable to the
beneficiary designated by Executive.


 


SECTION 10.       Automobile. During the remaining term of this Agreement,
the Company shall pay Executive a monthly auto allowance of three thousand
dollars ($3,000) and reimburse Executive for the maintenance and insurance
costs of such automobile.


 


SECTION 11.       D&O Insurance. During the Term of this Agreement, the
Company agrees to maintain director and officer liability insurance in scope
and amounts reasonably satisfactory to Executive.


 


SECTION 12.      Indemnification. The
Company shall indemnify Executive to the same extent as other senior executives
and directors of the Company are indemnified. The foregoing indemnification
shall not be inclusive of any other right which Executive may have or hereafter
acquire under any statute, provision of the Articles of Organization or
Operating Agreements, agreement, vote of stockholders or disinterested
directors or otherwise. The foregoing indemnification shall not be deemed to
affect any rights to subrogation which may exist in any policy of directors and
officers liability.


 


SECTION 13.       Vacation. Executive shall be entitled to paid vacation
of four (4) weeks per year in accordance with the Company’s vacation
policy, with the timing and duration of specific
vacations mutually and reasonably agreed to by the parties hereto.


 


SECTION 14.       Intentionally Omitted.


 


SECTION 15.       Special
Reimbursement.


 


(a)           Gross-Up Payment. If any payment or benefit paid or payable, or
received or to be received, by or on behalf
of the Executive in connection with a Change in Control pursuant to this
Agreement or the termination of the Executive’s employment pursuant to this
Agreement whether any such payments or benefits are pursuant to the terms
of this Agreement or any other plan, arrangement or agreement with the Company,
any affiliate of the Company, such as MezzCo, or otherwise (the “Total Payments”), will or would be subject
to the excise tax imposed under Section 4999 of the Internal Revenue Code
of 1986, as amended (the “Code”) (the “Excise
Tax”), the Company shall pay to the Executive an additional amount
(the “Gross-Up Payment”) such
that, after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes) imposed upon or in respect of the
Gross-Up Payment, including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and any Excise Tax imposed thereon, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total
Payments.


 


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(b)             Determination of Excise Tax
Liability. For purposes of
determining whether any of the Total Payments will be subject to the Excise Tax
and the amount of such Excise Tax, the Total Payments shall be treated as “parachute
payments” within the meaning of Section 280G(b)(2) of the Code, and
all “excess parachute payments” within the meaning of Section 280G(b)(l) of
the Code shall be treated as subject to the Excise Tax, unless it is reasonably
determined by tax counsel or another professional adviser selected by the
Company (which determination shall be provided to the Executive) that (i) such
Total Payments (in whole or in part) do not constitute parachute payments,
including (without limitation) by reason of Section 280G(b)(4)(A) of
the Code, (ii) such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of
the Code or (iii) such Total Payments (in whole or in part) are not otherwise
subject to the Excise Tax.


 


(c)      Repayment Obligation. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder, the
Executive shall repay to the Company, at
the time that the amount of such reduction in Excise Tax is finally determined,
the portion of the Gross-Up Payment attributable to such reduction plus
interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. In the event that the Excise Tax
is determined to exceed the amount taken into account hereunder as of either
the date of the Change in Control or the date of actual payment,
whichever is applicable (including by reason of any payment the existence or
amount of which cannot be determined at the time of the initial Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in accordance with this Section 15 in respect
of such excess Excise Tax (plus any interest, penalties or additions payable by
the Executive with respect to such excess Excise Tax) at the time that the amount
of such excess Excise Tax is finally determined. The Executive and the Company
shall each reasonably cooperate with each other in connection with any
administrative or judicial proceedings concerning the existence or amount of
any such subsequent liability for Excise Tax with respect to the Total
Payments.


 


SECTION 16.       Assignment. This Agreement shall be binding upon and
inure to the benefit of any successor of the Company. Any such successor of the
Company shall be deemed substituted for the Company under the terms of this
Agreement for all purposes. As used herein, “successor” shall include any
person, firm, corporation or other business entity which at any time, whether
by purchase, merger or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company.


 


SECTION 17.       Notices. All notices, requests, demands and other
communications called for hereunder shall be in writing and shall be deemed
given if delivered personally or three (3) days after being mailed by
registered or certified mail, or sent by Federal Express or some other private
express delivery company, return receipt requested, prepaid and addressed to
the parties or their successors in interest at the following addresses, or at
such other addresses as the parties may designate by written notice in the manner
aforesaid:


 


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If to the Company:


 


	
  If to Executive:

  	
  Michael Mecca

  
	
   

  	
  51 Princeville Lane

  
	
   

  	
  Las Vegas, Nevada 89113

  



 


SECTION 18.       Intentionally
Omitted.


 


SECTION 19.       Severability. In the event that any provision hereof
becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, this Agreement shall
continue in full force and effect without said provision.


 


SECTION 20.       Entire Agreement. This Agreement represents the entire agreement
and understanding between the Company and Executive concerning Executive’s
employment and director relationship with the Company, and supersedes and
replaces any and all prior agreements and understandings concerning Executive’s
employment relationship with the Company.


 


SECTION 21.       No Oral Modification,
Cancellation or Discharge. This
Agreement may only be amended, canceled or discharged in writing signed by
Executive and the Company.


 


SECTION 22.       Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Nevada.


 


SECTION 23.       Confidentiality. The parties hereto agree that this Agreement
and the terms contained herein constitute
confidential information which shall not be directly or indirectly disclosed
to any third party or recorded in any public records except to the extent that
such disclosure is required to implement or
enforce the terms of this Agreement, as may be required by law.


 


SECTION 24.       Miscellaneous. The rights and duties of the parties
hereunder are personal and may not be assigned or delegated without the express
written consent of all other parties to this Agreement. The captions used
herein are solely for the convenience of the parties and are not used in
construing this Agreement. Time is of the essence of this Agreement and the
performance by each party of its or his duties and obligations hereunder. The
prevailing party in any litigation, arbitration or mediation relating to this
Agreement shall be entitled to recover its reasonable attorney’s fees from the
other party. This Agreement may be signed in more than one counterpart, in
which case each counterpart shall constitute an original of this Agreement. Facsimile signatures shall be treated as original
signatures for all purposes.


 


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IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Employment Agreement.


 


	
  OPBIZ, LLC

  
	
   

  
	
   

  	
  [ILLEGIBLE]

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Dated:

  



 


 


	
  MICHAEL MECCA

  
	
   

  
	
   

  	
  /s/ Michael Mecca

  	
   

  
	
   

  	
  Dated:

  



 


 


	
  For the purpose of
  Section 5(c)

  	 

	
  MEZZCO, LLC

  	 

	
   

  	 

	
   

  	
  [ILLEGIBLE]

  	
   

  	 

	
   

  	
  By:

  
	
   

  	
  Dated:

  
				



 


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