AMERISTAR CASINOS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement is made and entered into as of the
18th day of August, 1999, by and between XXXXXX X. XXXXXXXX ("Employee") and
AMERISTAR CASINOS, INC. ("Company"), a Nevada corporation.
WHEREAS, the Company has offered and the Employee has accepted a position
of employment as SENIOR VICE PRESIDENT OF LEGAL AFFAIRS;
NOW, THEREFORE, for good and valuable consideration and in consideration
of the mutual promises and mutual covenants contained herein, Company and
Employee agree as follows:
1. EMPLOYMENT TERM
This is a one (1) year Agreement commencing as of a date to be determined
but in no event later than October 1, 1999, and continuing for one year until
the 31st day of August, 2000, unless terminated as hereinafter provided in
Paragraphs 6-9. This Agreement shall automatically renew from year to year
unless either party gives written notice of its desire to terminate the
Agreement 30 days prior to the expiration of the then-present term.
As required by the Nevada Gaming Control Board and pursuant to Ameristar
Casinos, Inc. Compliance Program, Employee is advised that this employment
offer is subject to the satisfactory completion of an investigative process.
The Company hereby acknowledges the satisfactory completion of the Compliance
Program investigation.
2. DUTIES
Employee will perform the duties of the Senior VP of Legal Affairs in
accordance with the Company's bylaws and will perform such other duties and
services as, from time to time, are reasonably required by the Company's Chief
Executive Officer or Board of Directors. Employee will report directly to the
Chief Executive Officer of the Company. Employee's primary work location will
be in the greater Los Angeles, California metropolitan area at an office to be
established by the Company. Employee will travel to the Company's offices in
Las Vegas, Nevada, and otherwise, as reasonably necessary for the fulfillment
of Employee's duties. Employee will not be required to relocate his primary
work location out of the greater Los Angeles, California metropolitan area
without his consent.
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3. OTHER SERVICES AND ACTIVITIES
Employee will devote substantially all of his or her efforts to the
Company's business. During the term of this Agreement, Employee will not
engage in any other employment or business activity or hold any office or
position in other companies or organizations that would pose a conflict of
interest with the Company's business. Employee will obtain the express written
consent of the Company's Chief Executive Officer or Board of Directors before
engaging in any such activity.
Notwithstanding the foregoing, Employee may serve as Of Counsel to
Sanders, Barnet, Xxxxxxx, Xxxxxx & Mosk, A Professional Corporation ("SBGS&M"),
for a period of not more than 90 days following Employee's employment
commencement date with the Company, subject to the following conditions: (I)
Employee's services on behalf of SBGS&M will be incidental and limited to
fulfilling Employee's professional responsibilities to SBGS&M clients and
transitioning the work for such clients to other attorneys; and (II) Employee
will not receive any compensation from SBGS&M for such services.
4. COMPENSATION AND BENEFITS
Employee will be paid an annual salary of Two Hundred Fifty Two Thousand
Five Hundred Dollars ($252,500.00), payable in bi-weekly installments of Nine
Thousand Seven Hundred Eleven Dollars and 54/100th Dollars ($9,711.54).
Upon the initial commencement of Employee's employment, Employee will also
be paid a sign-on bonus in the amount of One Hundred Thousand Dollars
($100,000.00), less applicable employment taxes. Should Employee voluntarily
terminate his employment with the Company within one (1) year of the date upon
which Employee's employment commences, Employee shall immediately reimburse the
Company for the entire One Hundred Thousand Dollars ($100,000.00); provided,
however, that Employee shall not be required to so reimburse the Company if
Employee terminates his employment for "Good Reason" following a "Change in
Control of the Company" (each as defined below). Such reimbursement shall be
paid to the Company before Employee officially leaves the Company's premises.
In accordance with Company policy, all subsequent salary increases and/or
discretionary incentive bonuses will be based on Employee's merit performance
and the Company's financial performance. Based on merit, Employee will be
eligible for up to 50% of Employee's base salary for the discretionary
incentive bonus. This potential bonus for fiscal year 1999 is subject to a pro-
rated amount based on a deemed employment commencement date of September 1,
1999.
Employee shall also receive 100,000 stock options with an average price to
be determined by the Board of Directors' Compensation Committee. The grant
date of the stock options will be not later than September 1, 1999 and the
vesting schedule will be over five (5) years at the rate of 20% each year.
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In accordance with Company policy, Employee will be eligible to
participate in the Company's 401 (K) Plan.
In accordance with Company policy, Employee will be eligible to enroll in
the Company's Group Health Benefits program on Employee's starting employment
date. In addition, Employee and Employee's family will be enrolled in the Exec-
U-Care program, which will pay 100% of Employee's monthly premiums and 100% of
Employee's medical claims in accordance with Exec-U-Care guidelines, to include
orthodontics. The basic health benefits program also includes life insurance
at two (2) times Employee's annual base compensation, up to $600,000, and LTD
insurance which pays 60% of Employee's annual base compensation up to the age
of 65.
In accordance with Company policy, Employee will receive food and beverage
complimentary privileges for business and personal use and will be eligible for
complimentary use of the Company's condominiums in Sun Valley, Idaho.
Employee will be eligible to participate in such other health, welfare and
benefit plans, and incentive compensation programs or plans as Company may in
the future establish or maintain for senior executives of comparable stature.
Employee's previously planned vacation for the last week of October 1999
has been approved as a paid pre-employment agreement and will not be deducted
from Employee's accrued PTO balance.
5. ILLNESS OR DISABILITY OF EMPLOYEE
If Employee is unable to perform services for the Company for a period of
more than 90 consecutive days, Company may terminate this Agreement upon not
less than 30 days written notice to the Employee. In the event of such
termination, all of the Company's prospective obligations hereunder will
terminate immediately.
6. DEATH OF EMPLOYEE
This Agreement will terminate immediately upon the death of the Employee.
If Employee dies during the term of this Agreement, Company will pay to
Employee's estate the compensation that would otherwise be payable to Employee
through the end of the month of Employee's death.
7. TERMINATION FOR CAUSE
Company may terminate this Agreement and all of its prospective
obligations hereunder upon occurrence of any of the following events ("cause"):
(a) Employee's material breach of this Agreement; (b) Employee's gross
negligence or willful misperformance of his or her duties; (c) Employee's
conviction of a felony or any other crime involving moral turpitude or
dishonesty which, in the good faith opinion of the Company, would impair
Employee's ability to perform his or her duties or the
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Company's business reputation;
(d) Employee's failure or refusal to comply with Company policies,
standards or regulations; (e) Employee's unauthorized disclosure of Company
trade secrets and other confidential business information; (f) Employee's
breach of his or her duty of loyalty; or (g) Employee's act of fraud,
misrepresentation, theft or embezzlement or the misappropriation of corporate
assets. A termination for cause pursuant to clause (a) or (d) may be effected
by the Company only following the delivery of written notice and the lapse of
the 10-day period without cure of the breach, failure or refusal to comply, as
required by paragraph 12. The Company shall have the burden of proving cause
in any dispute proceeding between the Company and Employee.
8. TERMINATION WITHOUT CAUSE OR FOR GOOD REASON
(a) The Company may terminate Employee's employment at any time without
cause (as defined above), and, in the absence of cause, the exercise
by the Company of its right not to renew this Agreement as provided in
paragraph 1 above shall be deemed to be a termination of employment
without cause. Upon a termination by the Company of Employee's
employment without cause, Employee shall be entitled to the severance
benefits set forth in paragraph 8(c).
(b) Employee may terminate his employment by the Company for "Good Reason"
(as defined below) at any time within 18 months following the
occurrence of any "Change in Control of the Company" (as defined
below) upon 30 days' prior written notice to the Company. If the
Company disputes the existence of Good Reason, the Company shall have
the burden of proving the absence of Good Reason. Upon a termination
by Employee of Employee's employment for Good Reason, Employee shall
be entitled to the severance benefits set forth in paragraph 8(c).
(c) The severance benefits due to Employee following a termination of
Employee's employment without cause or for Good Reason, as provided
for in paragraphs 8(a) and (b), will be a lump sum payment, less
applicable employment withholding taxes, equal to one times the amount
of Employee's annual salary at the time of termination, or, in the
case of a termination by Employee for Good Reason, the amount of
Employee's annual salary immediately prior to the occurrence of the
applicable Change in Control of the Company, if it is greater than
Employee's annual salary at the time of termination. Any severance
payment due to Employee will be made not later than the termination
date of Employee's employment. It is expressly agreed by Employee
that no other severance compensation, benefits, or wages will be due
and owing to Employee.
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(d) As used in this Agreement, the term "Good Reason" means:
(i) the breach by the Company of any material obligation to Employee
hereunder or under any compensation or benefit plan in which Employee is a
participant;
(ii) a reduction in the amount of the base annual salary of
Employee, or the failure of the Company to award Employee an annual bonus
equal to at least 75% of the average amount of the annual bonus paid to
Employee for the last two (2) full years ended prior to the occurrence of
the applicable Change in Control of the Company;
(iii) a material reduction in the authority, titles or
responsibilities of Employee, including without limitation the appointment
of any person other than Employee as the principal legal affairs officer
of the Company;
(iv) the requirement that Employee report to any person other than
the Chief Executive Officer of the Company; or
(v) the assignment of significant or material duties inconsistent
with Employee's position.
(e) As used in this Agreement, the term "Change in Control of the
Company" means:
(i) individuals who, as of the date of this Agreement, constitute
the entire Board of Directors of the Company ("Incumbent Directors") cease
for any reason to constitute at least a majority of the Board of Directors
of the Company; PROVIDED, HOWEVER, that any individual becoming a director
subsequent to such date whose election, or nomination for election by the
Company's stockholders, was approved by a vote of at least a majority of
the then Incumbent Directors (other than an election or nomination of an
individual whose assumption of office is the result of an actual or
threatened election contest relating to the election of directors of the
Company), also shall be an Incumbent Director; or
(ii) the stockholders of the Company shall approve (A) any merger,
consolidation, or recapitalization of the Company (or, if the capital
stock of the Company is affected, any subsidiary of the Company) or any
sale, lease, or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single plan) of
all or substantially all of the assets of the Company (each of the
foregoing being an "Acquisition Transaction") where (1) the stockholders
of the Company immediately prior to such Acquisition Transaction would not
immediately after such Acquisition Transaction beneficially own, directly
or indirectly, shares representing in the aggregate more than fifty
percent (50%) of (a) the then outstanding common stock of the corporation
surviving or resulting from such merger, consolidation or recapitalization
or
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acquiring such assets of the Company, as the case may be (the
"Surviving Corporation" (or of its ultimate parent corporation, if any)
and (b) the Combined Voting Power (as defined below) of the then
outstanding Voting Securities (as defined below) of the Surviving
Corporation (or of its ultimate parent corporation, if any) or (2) the
Incumbent Directors at the time of the initial approval of such
Acquisition Transaction would not immediately after such Acquisition
Transaction constitute a majority of the Board of Directors of the
Surviving Corporation (or of its ultimate parent corporation, if any) or
(B) any plan or proposal for the liquidation or dissolution of the
Company; or
(iii) any Person (as defined below) other than a Permitted Holder
(as defined below) shall become the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), directly or indirectly, of securities of
the Company representing in the aggregate fifty percent (50%) or more of
either (i) the then outstanding shares of the Company Common Stock or
(ii) the Combined Voting Power of all then outstanding Voting Securities
of the Company; PROVIDED, HOWEVER, that notwithstanding the foregoing, a
Change of Control shall not be deemed to have occurred for purposes of
this clause (iii) solely as the result of:
(A) an acquisition of securities by the Company which, by
reducing the number of shares of the Company Common Stock or other
Voting Securities outstanding, increases (i) the proportionate number
of shares of the Company Common Stock beneficially owned by any
Person to fifty percent (50%) or more of the shares of the Company
Common Stock then outstanding or (ii) the proportionate voting power
represented by the Voting Securities beneficially owned by any Person
to fifty percent (50%) or more of the Combined Voting Power of all
then outstanding Voting Securities; or
(B) an acquisition of securities directly from the Company
except that this paragraph (B) shall not apply to:
(1) any conversion of a security that was not acquired directly
from the Company; or
(2) any acquisition of securities if the Incumbent Directors at
the time of the initial approval of such acquisition would
not immediately after (or otherwise as a result of) such
acquisition constitute a majority of the Board of Directors
of the Company.
For purposes of this paragraph 8(e):
(w) "Person" shall mean any individual, entity (including,
without limitation, any corporation, partnership, limited liability
company, trust, joint
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venture, association or governmental body) or
group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act
and the rules and regulations thereunder); provided, however, that
"Person" shall not include the Company, any of its subsidiaries, any
employee benefit plan of the Company or any of its majority-owned
subsidiaries or any entity organized, appointed or established by the
Company or such subsidiary for or pursuant to the terms of any such
plan;
(x) "Voting Securities" shall mean all securities of a
corporation having the right under ordinary circumstances to vote in
an election of the Board of Directors of such corporation;
(y) "Combined Voting Power" shall mean the aggregate votes
entitled to be cast generally in the election of directors of a
corporation by holders of then outstanding Voting Securities of such
corporation; and
(z) "Permitted Holder" shall mean (A) the Company or any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company and (B) Xxxxx X. Xxxxxxx.
9. COVENANT NOT TO COMPETE
If the Company terminates Employee's employment without cause or if
Employee terminates Employee's employment for Good Reason and the Company
satisfies its obligations to pay severance to Employee as provided in
paragraph 8(c), then Employee shall not, for a period of one (1) year following
the date of termination of Employee's employment, directly or indirectly engage
in any business, or participate as an officer, director, employee or consultant
of any business, that operates casinos that target the Las Vegas locals market.
The parties agree that the restrictions and limitations contained in this
Paragraph are reasonable as to scope and duration and are necessary to protect
the Company's interests and to preserve for the Company the competitive
advantage derived from maintaining such information as secret. In the event
that any of the restrictions and limitations contained in this Paragraph are
deemed to exceed the time or geographic limitations permitted by Nevada law,
then such provisions of this Paragraph shall be reformed to the maximum time
and geographical limitations permitted by Nevada law.
10. CONFIDENTIAL INFORMATION
Employee agrees that he/she will not use or disclose (directly or
indirectly) any Confidential Information and Trade Secrets of the Company
whether in written, verbal, or model form, at any time or in any manner, except
as required and authorized by the Company in the course of employment with the
Company. The obligations of this Agreement are continuing and survive the
termination of Employee's employment
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relationship with the Company. Employee
acknowledges and agrees that such trade secrets and other confidential
information constitute the Company's sole and exclusive property. For purposes
of this Paragraph, the term "confidential information and trade secrets" refers
to any information that is not generally known to persons engaged in business
similar to that conducted or contemplated by the Company and includes, without
limitation: know how, trade secrets, business plans, copyrights, inventions,
patents, intellectual property, data, process, process parameters, methods,
practices, products, product design information, research and development data,
financial records, operational manuals, pricing, technical plans, computer
programs, customer information, customer lists, price lists, supplier lists,
marketing plans, financial information, and/or all other compilations of
information which relate to the business of the Company, and any other
propriety material of the Company, which have not been released by the Company
to the general public.
Upon termination of his or her employment, Employee shall turn over to the
Company the originals, plus all copies, of any and all files, Rolodex cards,
phone books, papers, notes, price lists, customer contracts, bids, customer
lists, files, notebooks, books, memoranda, drawings, or other documents made,
compiled by or delivered to him/her concerning any customer served by the
Company or any product, apparatus, or process manufactured, used, developed or
investigated by the Company or containing any Confidential Information or Trade
Secrets or otherwise relating to Employee's performance of duties under this
Agreement. Employee further acknowledges and agrees that all such documents
are the Company's sole and exclusive property.
11. INDEMNIFICATION
Each party will keep, save, protect, defend, indemnify and hold the other
harmless from and against any and all costs, claims, expenses, damages, or
deficiencies resulting from any misrepresentation, breach, default or non-
fulfillment of any agreement or covenant set forth in this Agreement. In
addition, concurrently herewith, the Company and Employee enter into an
Indemnification Agreement in the standard form for the Company's executive
officers and directors.
12. BREACH OF THE AGREEMENT
In the event of any claimed breach of this Agreement, the party claimed to
have committed the breach will be entitled to written notice of the alleged
breach and a period of 10 days in which to remedy such breach. Employee
acknowledges and agrees that a breach of any of the covenants contained in this
Agreement will result in irreparable and continuing harm to the Company for
which there will be no adequate remedy at law. The Company will be entitled to
preliminary and permanent injunctive relief to restrain Employee from violating
the terms and conditions of this Agreement in addition to other valuable
remedies, at law and in equity.
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13. DISPUTE RESOLUTION
Except for a claim by either Employee or Company for injunctive relief, any
dispute or difference of opinion between Employee and Company involving the
meaning, interpretation, and application of any provision of this Agreement
shall be adjusted exclusively through binding arbitration pursuant to the
National Rules for the Resolution of Employment Disputes. The arbitrator shall
have no authority, jurisdiction, or power to amend, modify, nullify, or add to
the provisions of this Agreement. The arbitrator shall have no authority to
award noneconomic damages or punitive damages except where such relief is
specifically authorized by an applicable state or federal statute which creates
a cause of action in the employment context. In such a situation, the
arbitrator shall specify in his or her award the specific statute under which
he or she has granted such relief. Costs shall be awarded to the prevailing
party by the arbitrator. Each party shall pay their own attorney's fees. No
request to arbitrate will be entertained or processed unless it is received in
writing by either party to this Agreement within one (1) year after the
occurrence of the event giving rise to the dispute. If the parties are unable
to mutually agree upon an arbitrator, the parties agree to have the Las Vegas
office of the American Arbitration Association furnish them a panel of seven
(7) arbitrators all of whom are members of the National Academy of Arbitrators
and who reside in Southern California or Southern Nevada from which an
arbitrator shall be selected between the parties by mutual strike.
14. NOTICES
Any notice required or desired to be given under this Agreement by either
party to the other shall be in writing and may be effected by personal delivery
or by registered or certified mail at the addresses listed below or at such
other addresses as either party may notify the other:
A. If to the Company, to:
Corporate Vice President of Human Resources,
or designee
Ameristar Casinos, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000 X.
Xxx Xxxxx, Xxxxxx 00000
B. If to the Employee, to:
Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Notices personally delivered will be deemed effective upon receipt. Notices
sent by registered or certified mail will be deemed effective three (3) days
after mailing.
15. ENFORCEMENT
This Agreement shall be construed in accordance with and governed for all
purposes by the laws of the State of Nevada. In case any one or more provisions
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contained in this Agreement shall, for any reason, be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein. If moreover, any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to time, duration, geographical scope, activity or
subject, it shall be construed, by limiting and reducing it, so as to be
enforceable to the maximum extent compatible with the applicable law as it
shall then appear.
16. AMENDMENTS
This Agreement may be amended or modified only by a writing executed and
agreed upon by both parties.
17. WAIVER
Waiver by either party of any term or condition of this Agreement or any
breach hereof will not operate or be construed as a waiver of any other term or
condition or subsequent breach. No waiver shall be binding unless executed in
writing by the parties making the waiver.
18. ASSIGNMENT
Employee acknowledges that his or her services are unique and personal
and, accordingly, that Employee may not assign his or her rights or delegate
his or her duties and obligations under this Agreement. The Company's rights
and obligations under this Agreement will inure to the benefit of, and be
binding upon, the Company's successors and assigns.
19. MERGER
This Agreement constitutes the entire agreement of the parties and
supersedes all prior agreements, arrangements and communications between the
parties, whether oral or written.
20. HEADINGS
The headings of the Paragraphs of this Agreement are for convenience only
and shall not affect the construction or interpretation of any of its
provisions.
21. REVIEW/UNDERSTANDING OF AGREEMENT
Each party to this Agreement has reviewed the Agreement with legal counsel
of their choice and has had the opportunity to modify or eliminate any
ambiguous provisions. Therefore, it is agreed that each party hereto is
considered a drafter of this
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Agreement and that the contract interpretation
rule which holds ambiguities are to be interpreted against the original drafter
of a document is expressly waived by the parties.
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts conformed by
facsimile signatures transmitted by telephone, each of which shall be deemed a
duplicate original.
COMPANY: EMPLOYEE:
AMERISTAR CASINOS, INC.
BY: /s/Xxxxx X. Xxxxxxx by Xxxxxx Xxxxxx /s/Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx, President Xxxxxx X. Xxxxxxxx
and Chief Executive Officer
DATE: August 23, 1999 DATE: August 23, 1999
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On this 23rd day of August 1999, Xxxxx X. Xxxxxxx directed
Xxxxxx Xxxxxx , in his presence as well as our own, to sign the
foregoing document as "Xxxxx X. Xxxxxxx." Upon viewing the signature as signed
by Xxxxxx Xxxxxx , and in our presence, Xxxxx X. Xxxxxxx
declared to us that he adopted it as his own signature.
/s/Xxxx X. Xxxx,
Witness
/s/Xxxxx Xxxxxxxxxxxx,
Witness
STATE OF NEVADA )
:ss
COUNTY OF XXXXX )
I, Xxxxx Xxxxx , Notary Public in and for said
county and state, do hereby certify that Xxxxx X. Xxxxxxx personally appeared
before me and is known or identified to me to be the person whose name is
subscribed to the within instrument in his capacity as President and Chief
Executive Officer of Ameristar Casinos, Inc. Xxxxx X. Xxxxxxx, who being
unable due to physical incapacity to sign his own name or offer his xxxx, did
direct Xxxxxx Xxxxxx , in his presence, as well as my own, to
sign the foregoing document as "Xxxxx X. Xxxxxxx." Xxxxx X. Xxxxxxx, after
viewing his name as signed by Xxxxxx Xxxxxx , thereupon adopted
it as his own by acknowledging to me his intention to so adopt it as if he had
personally executed the same on behalf of Ameristar Casinos, Inc., and further
acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this 23rd
day of August 1999.
/s/Xxxxx Xxxxx,
Notary Public
Residing at: Las Vegas, NV
My Commission Expires:
7/23/2002
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