**Exhibit 10.53**

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**EMPLOYMENT AGREEMENT**

 

 

ThisEMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of this 5th dayof September, 2004, by and between The Old Evangeline Downs, L.L.C.(hereinafter the “Employer”) and Michael Howard (hereinafter the “Employee”).

 

WHEREAS,the Employee has experience related to the business of the Employer; and

 

WHEREAS,Employer desires and intends to employ the Employee as General Manager of the Employer,pursuant to the terms and conditions set forth in this Agreement.

 

NOW,THEREFORE, in consideration of the mutual promises and covenants set forth inthis Agreement, the Employee and the Employer agree as follows:

 

**DURATION**

 

1.               The Agreement will beeffective on the date hereof and shall continue for a term of three (3) yearsfrom and after September 5, 2004 and shall continue through September 5, 2007,except as otherwise provided herein. This Agreement shall continue on a year-to-year basis, subject totermination by either party for any reason or no reason upon thirty (30) daysprior written notice to the other.

 

**COMPENSATION**

 

2.               All payments of salary andother compensation to the Employee shall be payable in accordance with the Employer’sordinary payroll and other policies and procedures.

 

a.               During each year of thisAgreement, the Employer agrees to compensate the Employee on a salary basis atthe annual rate of $225,000 (“Base Salary”).

 

b.              Thereafter, if thisAgreement is continued as provided in paragraph 1 above, the Employee’s BaseSalary will be subject to increase pursuant to the Employer’s policies andprocedures regarding salary review then in effect for employees similarlysituated to Employee.

 

c.               During the term of thisAgreement, the Employee shall also receive expense reimbursements in accordancewith the Employer’s policies and procedures then in effect, and which may beamended from time to time.

 

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d.              In addition to the BaseSalary Employee shall be entitled to receive a bonus in accordance to the following:

 

(i)                                     For the yearending 12/31/04, Employee shall be entitled to receive a bonus of $10,000.00based on the criteria outlined by Employer’s Chief Operating Officer;

(ii)                                  On or about January1, 2006 and for each calendar year of the term hereof, Employee shall beentitled to receive a bonus of no less than $25,000.00 and up to $112,500.00,based on Employee’s performance during the previous employment year whichperformance and criteria shall be based on meeting or exceeding the criteriaoutlined by the Chief Operating Officer.

 

The parties acknowledge that in order to receive a bonus, Employee mustbe a current employee of Employer on the date such bonus is to be paid, andshall not have given notice of an intent to resign his employment on or priorto the date such bonus is to be paid.

 

e.               Employee will be alsoentitled to be reimbursed for relocation expenses in connection with Employee’srelocation from northern Louisiana.  Suchexpenses of Employee will be reimbursed in accordance with the Employer’srelocation policy, but will be amended to include up to one (1) year for atemporary housing allowance for an apartment in the Opelousas area.

 

Boththe Employer and the Employee acknowledge that such compensation and the othercovenants and agreements of the Employer contained herein are fair and adequatecompensation for the Employee’s services and for the mutual promises describedbelow.

 

3.               The Employer and theEmployee acknowledge and agree that, subject to the provisions of thisAgreement, the Employee shall be entitled to receive the standard benefitsgiven to all Employer employees. Notwithstanding the foregoing, the Employee’s benefits shall includehealth insurance, a deferred compensation plan to be implemented by Employer,and such other benefits generally made available to the Employer’s management employees.

 

4.               The Employee acknowledgesand agrees that any employee benefits provided to the Employee by the Employerincident to the Employee’s employment are governed by the applicable plan documents,summary plan descriptions or employment policies, and may be modified,suspended or revoked at any time, in accordance with the terms and provisionsof the applicable documents or policies.

 

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**EMPLOYEE RESPONSIBILITIES**

 

5.               The Employee acknowledgesand agrees that he shall be employed as General Manager of the racino commonlyknown as Old Evangeline Downs, located in Opelousas, Louisiana, and agrees todevote his best efforts and his working time to his position with Employer andshall comply with all of the Employer’s policies and codes of conduct.  Employee shall not engage in any additionalemployment, including any paid consulting or other services to third parties,without the prior written approval of the Employer.

 

6.               The Employee acknowledgesand agrees that the duties and responsibilities of the Employee required by hisposition are wholly within the discretion of the Chief Operating Officer and/orsuch other individual(s) as the Board of Directors of the Employer maydesignate, which duties and responsibilities may be modified, or new duties andresponsibilities may be imposed by the Employer, subject to the Change ofControl and Severance Provisions herein.

 

7.               Employee will be located inOpelousas, Louisiana for purposes of carrying out his responsibilitieshereunder unless otherwise directed by the Chief Operating Officer.

 

 

 

**TERMINATION**

 

8.               The Employee has the rightto terminate this agreement upon thirty (30) days prior written notice to Employer.  The Employee acknowledged and agrees that theChief Operating Officer or such other individual having the authority of the Employerhas the right to terminate this Employment Agreement, for any reason, byproviding the Employee with sixty (60) days prior written notice of thetermination or payment in lieu of such compensation during such noticeperiod.  If the Agreement is terminatedby Employee and not by the Employer, except as otherwise set forth herein, the Employeris not obligated to pay Employee compensation during such notice period(including any bonus) unless the Employer elects to have Employee continue inhis employ during such period and only for the number of days the Employerelects to have Employee continue in its employ. However, if the Agreement is terminated by the Employer without “goodcause” as defined below, the Employer covenants and agrees to provide theEmployee, in addition to the sixty day compensation period, with the SEVERANCEset forth in Section 14 herein.

 

9.               The Employee acknowledgesthat Employer has the right to terminate this Agreement at any time, withoutnotice, unless specifically set forth herein, for any “good cause” defined asthe following:

 

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a.               Employee’s death.

 

b.              Employee becoming mentallyor physically disabled (a “disability”), which disability renders Employeeunable to perform, as certified by a mutually-agreeable competent medicalphysician, a substantial portion of Employee’s duties hereunder for acontinuous period of sixty (60) days or a total of ninety (90) days in anytwelve (12) consecutive month period.

 

c.               Employee’s commission of anact of embezzlement, fraud or misappropriation against the Employer.

 

d.              Employee’s conviction of orentry of a plea of guilty or a nolo contender or its equivalent to a felony.

 

e.               Employee’s conviction of amisdemeanor involving moral turpitude.

 

f.                 Employee’s continuednegligence or failure to discharge Employee’s duties or responsibilities or therepeated taking of any action prohibited by Employer’s immediate supervisor,the Managing Member or the Board of Managers of the Employer, and the same isnot cured within thirty (30) days after written notice specifying such failureby Employee.

 

g.              Employee’s gross negligenceor gross misconduct in the course and scope of his employment with Employerincluding dishonesty, a willful violation of any law or regulation resulting inmaterial adverse consequences to Employer.

 

h.              Employee’s being under theinfluence of illegal drugs or chronic alcohol abuse while performing his dutiesherein, the revocation, suspension for more than thirty (30) days or avoluntary relinquishment of any gaming license for the performance of Employee’sduties hereunder or the failure of Employee to maintain or obtain a gaminglicense or other license necessary for Employee to function and operate asGeneral Manager in the jurisdictions where Employer does business or in otherjurisdictions where Employee has responsibility through no fault of Employer.

 

i.                  Breach of any term orcondition of this Agreement or any policies or procedures of Employer andEmployee’s failure to cure the affects of such violation within thirty (30)days after written notice specifying in reasonable detail the alleged failureor violation.

 

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AlthoughEmployee shall have the right to remedy certain violations or failures as setforth above where a notice provision and opportunity to cure is specifically provided,in no event will Employee be entitled to more than one thirty (30) day noticefor breach or violation of the same offense or infraction; subsequentcommission of the same offense or infraction will warrant immediatetermination.

 

Inthe event that Employee is terminated by the Employer for “good cause”, theEmployer shall only be required to pay Employee those amounts due to Employee,and Employee shall not be entitled to receive any bonus amounts.

 

 

 

**CHANGE OF CONTROL**

 

10.         If the Employer shouldundergo a “Change of Control”, as defined below, and there is a materialdiminution in the Employee’s responsibilities and duties, then the Employee, athis option, may notify the Employer at any time within six month (6) followingsuch Change of Control that he intends to terminate his Agreement based uponthe Change of Control.

 

11.         In the event that theEmployee elects to terminate this Agreement based upon a Change in Control orthe Employee is terminated as a result of the Change of Control as set forthbelow, the Employer covenants and agrees to pay to the Employee as severancecompensation an amount equal to the greater of (i) the amount Employee wouldhave received through the duration of his contract, including the value ofthose benefits that would have been earned but for the Change in Controlincluding any amount of bonus that Employee would have earned but for suchChange in Control, subject to customary withholding or (ii) Twelve months’ paybased on the annual compensation provided to Employee hereunder including allbenefits and other compensation including the bonus, if any, that would havebeen earned but for the Change in Control.

 

12.         In the event the Employee isterminated without cause within six (6) months following such Change ofControl, Employee shall be entitled to the compensation described in paragraph11 above.

 

13.         As used in this Agreement, a“Change of Control” shall be deemed to have occurred in any of the followinginstances:

 

a.               The Employer is merged orconsolidated with another corporation or entity and as a result of such mergeror consolidation less than fifty-one percent (51%) of the outstanding votingsecurities, units or other interests (on a fully diluted basis) of thesurviving or resulting corporation are owned in the aggregate by the formerowners of the Employer;

 

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b.              The Employer sells all orsubstantially all of its assets; or

 

c.               There is an acquisition offifty percent (50%) or more of the outstanding voting securities, interest,units or other ownership rights of Employer pursuant to any transaction orcombination of transactions by any person or group.

 

 

**SEVERANCE**

 

14.         The Employee and the Employeracknowledge and agree that, if the Employer elects to terminate this Agreement atany time prior to the expiration of its term, for any reason other than “goodcause” as defined above, ***and is not a result of aChange in Control,*** the Employee shall, in addition to suchcompensation that has already accrued to Employee, be entitled to severance payas described herein.  Such severance payshall be equal to the lesser of (i) the amount Employee would have receivedthrough the duration of his contract, including the value of those benefitsthat would have been earned but for the Termination of his contract includingthe bonus; or (ii) six months pay including a pro rata share of the bonuscompensation the Employer would have been paid, plus the other benefits thatwould have been earned based on the compensation provided to Employee hereunder,both subject to normal withholding. Employee will be required to execute a settlement and general release ofclaims against the Employer, its officers, managers, members, agents,employees, successors and assigns, for matters arising out of or relating toEmployee’s employment with the Employer, in a form acceptable to Employer.

 

 

**SEVERABILITY**

 

15.         The parties acknowledge andagree that each covenant and/or provision of this Agreement shall beenforceable independently of every other covenant and/or provision.Furthermore, the parties acknowledge and agree that, in the event any covenantand/or provision of this Agreement is determined to be unenforceable for anyreason, the remaining covenants and/or provisions will remain effective,binding and enforceable.

 

**WAIVER**

16.         The parties acknowledge andagree that the failure of either to enforce any provision of this Agreementshall not constitute a waiver of that particular provision, or of any otherprovisions of this Agreement.

 

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# **SUCCESSORS AND ASSIGNS AND SURVIVAL**

 

17.         This Agreement shall bebinding upon the successors and assigns of Employer and this Agreement will befully binding upon, and may be enforced by the Employee against any successorand/or assignee of the Employer. To the extent necessary to enforce the termsof this Agreement the provisions including, but not limited to Compensation,Change in Control and Indemnification shall survive the expiration or earlytermination of this Agreement

 

**INDEMNIFICATION**

 

18.         During the term of thisAgreement, the Employer shall indemnify, defend, hold and save the Employee harmlessfrom and against any and all liabilities, costs and expenses whatsoever(including, but not limited to, attorneys’ fees and court costs) relating tohis employment by the Employer to the fullest extent permissible under thelaw.  This indemnification shall includeEmployee’s heirs, administrators or executor and each of them provided thatEmployee, his heirs, administrators or executors or one of them promptlynotifies Employer of adverse claims or threatened or actual lawsuits.  Employee, his heirs, administrators orexecutors as appropriate shall provide complete cooperation to Employer, itsattorneys and agents in such case to the extent possible.  This indemnity by Employer notwithstanding thisparagraph shall not include the gross negligence, misconduct or criminal actsor omissions on the part of the Employee.

 

**NON-COMPETITION AGREEMENT**

 

19.         Both parties acknowledge that the Employee’sposition is one of considerable responsibility and requires considerabletraining, relationships and contacts with customers, clients and potentialcustomers and clients, and experience that it will take a substantial amount ofEmployer’s time to replace an employee who has received such training,relationships, contacts and experience as are typically afforded by Employer.

 

20.         As a condition of employment and continuedemployment of Employee by Employer, the parties mutually agree that confidentialityis required in connection with the business of Employer and in connection withthe operations and the names of Employer’s customers and clients, and thataccordingly, it is vital that Employer be protected from direct or indirectcompetition from key employees whose employment might be terminated by

 

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or from Employer, said protection required during employment and for areasonable period of time after termination thereof.

 

21.         It is hereby agreed by and between the parties that,as a part of the valuable consideration of the employment and continuedemployment of Employee by Employer:

 

a.               That Employee shall treatand keep secret all matters relating directly or indirectly to the business ofEmployer, including but not limited to, the contents of all manuals, memoranda,production, marketing, promotional and training materials, financialstatements, sales and operations records, business methods, systems and forms,production records, billing rates, cost rates, employee salaries and workhistories, customer and client lists, mailing lists, processes, inventions,formulas, job production and cost records, special terms with customers andclients or any other information relative to the past, present or prospectivecustomers and operations as completely confidential information entrusted tohim solely for use in his capacity as an employee of Employer.  Employee further agrees not to keep and/oruse any papers, records, or any information whatsoever relative to any of thematters referred to in the preceding sentence, nor shall Employee furnish, makeavailable or otherwise divulge such information to any person during or afterhis employment by Employer, unless specifically instructed to do so in writingsigned by the Chief Operating Officer of Employer.

 

b.              That if for any reasonEmployee shall voluntarily or involuntarily terminate his employment orEmployer shall terminate Employee, it is specifically agreed and understoodthat Employee, for a  period commencingon the date of termination and terminating on the earlier of (i) the normalexpiration of the then effective Term or Extended Term or (ii) six (6) monthsfollowing the date of termination, shall not, within a radius of fifty (50)miles of Dubuque, Iowa or Opelousas, Louisiana and/or any entities withinPeninsula Gaming, LLC (the “Territories”), directly or indirectly engage in, beinterested in, or in any manner whatsoever be connected with any casino orracino located within the Territories. The Territories shall not include the State of Nevada.

 

c.               That if for any reasonEmployee shall voluntarily or involuntarily terminate his employment orEmployer shall terminate Employee, it is specifically agreed and understoodthat Employee, for a period of one (1) year from the date of termination, shallnot, directly or indirectly, in any capacity whatsoever, hire or solicit foremployment any individual employed as an employee of Employer at any timeduring the three (3) months preceding the date of termination.

 

d.              That if for any reasonEmployee shall voluntarily or involuntarily terminate his employment orEmployer shall terminate Employee or

 

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this Agreement otherwise expires, Employee shall promptly deliver tothe Employer all materials of a confidential nature as described herein andsuch other materials relating to the Employer’s business in Employee’s possessionor control.

 

**NOTICES**

 

22.         Any notice required or permitted under thisAgreement shall be in writing and shall be sent certified mail, return receiptrequested.  Any such notice shall bedeemed given when so sent as follows:

 

Ifto Employer, to:

 

JonathanSwain

PeninsulaGaming, LLC

P.O.Box 1750

Dubuque,IA  52004-1750

 

Ifto the Employee, to:

 

MichaelHoward

643Linden Street

Shreveport,LA  71106

 

 

 

**APPLICABLE LAW**

 

23.         This Agreement shall begoverned by the laws of the State of Iowa. The parties agree that any dispute arising out of this Agreement, or theinterpretation of its terms, whether monetary or otherwise, shall be decided bybinding arbitration pursuant to the Commercial Arbitration Rules of theAmerican Arbitration Association (“AAA”). The arbitration shall be heard before a single arbitrator in Las Vegas,NV under the expedited rules of the AAA. The costs of the arbitration shall be borne equally between Employer andEmployee with each side to bear each side’s own attorneys fees and costs.

 

 

 

**MODIFICATION**

 

24.         Both parties acknowledge andagree that this Agreement constitutes the complete  and entire agreement between the parties;that the parties have executed this Agreement based upon the express terms andprovisions set

 

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forth herein; that the parties have not relied on any representations,oral or written, which are not set forth in this Agreement; that no previousagreement, either oral or written, shall have any effect on the terms orprovisions of this Agreement; and that all previous agreements, either oral orwritten, are expressly superseded and revoked by this Agreement.

 

25.         Both parties acknowledge andagree that the covenants and/or provisions of this Agreement may not bemodified by any subsequent agreement unless the modifying agreement; (i) is inwriting; (ii) contains an express provision referencing this Agreement; (iii)is signed by the Employee; and (iv) is signed by an authorized signatory of theEmployer.

 

ThisAgreement shall be effective on the first day and year above written.

 
|   | EMPLOYEE:                        |
|--------|----------------------------------|
|   |                             |
|   |                             |
|   | /s/ Michael Howard               |
|   | Michael Howard                   |
|   |                             |
|   |                             |
|   | EMPLOYER:                        |
|   |                             |
|   | THE OLD EVANGELINE DOWNS, L.L.C. |
|   |                             |
|   | By:                              | /s/ Jonathan Swain |
|   |                             | Jonathan Swain |
|   |                             | Chief Operating Officer |
|   |                             | Peninsula Gaming, LLC and as an |
|   |                             | Authorized signatory of The Old |
|   |                             | Evangeline Downs, L.L.C. |

 

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