Exhibit 10(hh)
AMENDMENT AND RESTATEMENT OF
EMPLOYMENT AGREEMENT
THIS AMENDMENT AND RESTATEMENT OF AGREEMENT
(the "Agreement") is made and entered into as of the 1st day of
November, 1997, by and between Circus Circus Enterprises, Inc., a
Nevada corporation (the "Company") and Xxxxx X. Xxxxxxxxx
("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an
Employment Agreement (the "Agreement") dated as of June 1, 1995;
WHEREAS, Executive and the Company deem it to be in
their respective best interests to enter into an amendment and
restatement of the Agreement providing for the Company's continued
employment of Executive pursuant to the terms herein stated;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby agreed as
follows:
1. Effective Date. This Agreement shall be effective as of
the 1st day of June, 1995, which date shall be referred to herein as the
"Effective Date".
2. Position and Duties.
(a) The Company hereby employs Executive as its
President, Treasurer and Chief Financial Officer commencing as of the
Effective Date for the "Term of Employment" (as herein defined below).
In this capacity, Executive shall devote his best efforts and his full
business time and attention to the performance of the services
customarily incident to such offices and position and to such other
services of a senior executive nature as may be reasonably requested by
the Board of Directors (the "Board") of the Company which may include
services for one or more subsidiaries or affiliates of the Company.
Executive shall in his capacity as an employee and officer of the
Company be responsible to and obey the reasonable and lawful directives
of the Board and of any officers ("Supervising Officers") to whom he
shall report.
(b) Executive shall devote his full time and attention
to such duties, except for sick leave, reasonable vacations, and excused
leaves of absence as more particularly provided herein. Executive shall
use his best efforts during the Term of Employment to protect, encour-
age, and promote the interests of the Company.
(c) If the Company exercises its right under Section
5(a) of this Agreement to remove Executive from the position set forth
in Section 2(a) above, unless Executive elects to terminate his
employment with the Company pursuant to Section 5(a), the Company
shall continue to employ Executive on a reasonable basis to provide
services to the Company as requested by the Chairman and Vice-
Chairman of the Company's Board of Directors with respect to matters
on which Executive has worked prior to his removal from his position as
an officer of the Company. In such event, Sections 2(a) and 2(b) shall
cease to be of further effect as of the date of such removal.
3. Compensation.
(a) Base Salary. The Company shall pay to Executive
during the Term of Employment a minimum salary at the rate of six hun-
dred thousand dollars ($600,000) per calendar year and agrees that such
salary shall be reviewed at least annually. Such salary shall be subject
to mandatory annual increases for each year during the Term of
Employment equal to 5% of the rate of such salary in effect immediately
prior to each such increase, with further discretionary increases as
determined by the Board of Directors. Such salary shall be payable in
accordance with the Company's normal payroll procedures. (Executive's
annual salary, as set forth above or as it may be increased from time to
time as set forth herein, shall be referred to hereinafter as "Base Salary.")
At no time during the Term of Employment shall Executive's Base Salary
be decreased from the amount of Base Salary then in effect.
(b) Performance Bonus. In addition to the
compensation otherwise payable to Executive pursuant to this
Agreement, Executive shall be eligible to receive an annual bonus
("Bonus") pursuant to a performance bonus plan (the "Bonus Plan")
which shall be established by the Company for its senior executive
officers and which shall provide for bonus compensation to be payable
based upon the financial and other performance of the Company and its
senior executives. It is intended that the Bonus Plan shall conform to the
requirements applicable to "qualified performance based compensation"
under Section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"). During the Term of Employment, Executive's
targeted annual bonus under the Bonus Plan shall not be less than 100%
of Executive's then current Base Salary.
(c) Long Term Incentive/Stock Options. Executive
has been granted stock options to purchase the Company's common
stock as set forth in those certain Non-Qualified Stock Option Certificates
and Agreements dated as of March 19, 1995 and attached hereto as
Exhibits A, B and C.
4. Benefits. During the Term of Employment:
(a) Executive shall be eligible to participate in any
life, health and long-term disability insurance programs, pension and
retirement programs, stock option and other incentive compensation
programs, and other fringe benefit programs made available to senior
executive employees of the Company from time to time, and Executive
shall be entitled to receive such other fringe benefits as may be granted
to him from time to time by the Company's Board of Directors.
(b) Executive shall be allowed vacations and leaves
of absence with pay on the same basis as other senior executive
employees of the Company.
(c) The Company shall reimburse Executive for
reasonable business expenses incurred in performing Executive's duties
and promoting the business of the Company, including, but not limited
to, reasonable entertainment expenses, travel and lodging expenses, fol-
lowing presentation of documentation in accordance with the Company's
business expense reimbursement policies.
(d) Executive shall be added as an additional named
insured under all liability insurance policies now in force or hereafter
obtained covering any officer or director of the Company in his or her
capacity as an officer or director. Company shall indemnify Executive in
his capacity as an officer or director and hold him harmless from any
cost, expense or liability arising out of or relating to any acts or decisions
made by him on behalf of or in the course of performing services for the
Company (to the maximum extent provided by the Company's Bylaws
and applicable law).
5. Term; Termination of Employment. As used herein, the
phrase "Term of Employment" shall mean the period commencing on the
Effective Date and ending three (3) years from the Effective Date,
provided that as of the expiration date of each of (i) the initial three (3)
year Term of Employment and (ii) if applicable, any Renewal Period (as
defined below), the Term of Employment shall automatically be extended
for a one (1) year period (each a "Renewal Period") unless either the
Company or Executive provides six (6) months' notice to the contrary.
Notwithstanding the foregoing, the Term of Employment shall expire on
the first to occur of the following:
(a) Termination by the Company Without Cause or
By Executive With Good Reason. Notwithstanding anything to the con-
trary in this Agreement, whether express or implied, the Company may,
at any time, remove Executive from the position specified in Section 2(a)
for any reason or no reason, without terminating Executive's employment
for Cause (as defined below) or otherwise, by giving Executive at least
60 days' prior written notice of the effective date of such removal (the
"Removal Date"). In the event Executive is removed from such position,
Executive may elect during such 60 day period to continue his
employment with the Company, as specified in Section 2(c), or may elect
to terminate his employment for Good Reason (as defined below).
If Executive elects to continue his employment with the Company,
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the
Removal Date and ending on the later of (i) the expiration of the Term of
Employment, as defined above and without regard to the continuation of
Executive's employment under this paragraph, or (ii) the first anniversary
of the Removal Date (the "Employment Continuation Period"); (y) if it has
not previously been paid to Executive, any Bonus to which Executive had
become entitled under the Bonus Plan prior to the Removal Date; and (z)
annual Bonuses during the Employment Continuation Period in an amount
equal to the product of Executive's Base Salary on the Removal Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Employment
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Employment
Continuation Period, Executive shall continue to be covered under all
employee benefit plans and policies of the Company in which Executive
was a participant as of the Removal Date, at the same coverage level
and on the same terms and conditions which applied immediately prior
to the Removal Date.
If Executive elects to terminate his employment with the Company
for Good Reason, because of his removal from his position under Section
2(a) or otherwise, Executive shall have no duties under Section 2 and
Executive shall be entitled to receive (x) his Base Salary as he would
have received such amounts during the period commencing on the date
of the termination of Executive's employment (the "Termination Date")
and ending on the later of (i) the expiration of the Term of Employment,
as defined above, or (ii) the first anniversary of the effective date of such
termination (the "Salary Continuation Period"); (y) if it has not previously
been paid to Executive, any Bonus to which Executive had become
entitled under the Bonus Plan prior to the Termination Date; and (z)
annual Bonuses during the Salary Continuation Period in an amount equal
to the product of Executive's Base Salary on the Termination Date and
the minimum targeted bonus percentage specified in Section 3(b),
payable in the ordinary course and prorated, as applicable, for any partial
fiscal year of the Bonus Plan ending on the final day of the Salary
Continuation Period. In addition, all of Executive's stock options with
respect to the Company's stock shall become immediately and fully
exercisable and shall continue to be exercisable pursuant to their terms
and the terms of applicable stock option plan. During the Salary
Continuation Period, Executive and his spouse and dependents shall be
entitled to continue to be covered by all group medical, health and acci-
dent insurance or other such health care arrangements in which
Executive was a participant as of the Termination Date, at the same
coverage level and on the same terms and conditions which applied
immediately prior to the Termination Date, until Executive obtains
alternative comparable coverage under another group plan, which
coverage does not contain any pre-existing condition exclusions or
limitations; provided, however, that if, as the result of Executive's
termination employment, Executive and/or his otherwise eligible
dependents or beneficiaries shall become ineligible for benefits under any
one or more of the Company's benefit plans, the Company shall continue
to provide Executive and his eligible dependents or beneficiaries, through
other means, with benefits at a level at least equivalent to the level of
benefits for which Executive and his dependents and beneficiaries were
eligible under such plans immediately prior to the Termination Date. At
the termination of the benefits coverage under the preceding sentence,
Executive and his spouse and dependents shall be entitled to
continuation coverage pursuant to Section 4980B of the Internal Revenue
Code of 1986, as amended, Sections 601-608 of the Employee
Retirement Income Security Act of 1974, as amended, and under any
other applicable law, to the extent required by such laws, as if Executive
had terminated employment with the Company on the date such benefits
coverage terminates. Notwithstanding any other provision of this
Agreement to the contrary, Executive shall not be entitled to participate
in any pension benefit, welfare benefit or other employee benefit or
compensation plan, policy or arrangement of the Company during the
Salary Continuation Period, except as provided in this paragraph.
For purposes of this Agreement, "Good Reason" shall mean,
without the express written consent of Executive, the occurrence of any
of the following events unless such events are fully corrected within 30
days following written notification by Executive to the Company that he
intends to terminate his employment hereunder for one of the reasons set
forth below:
i) a material breach by the Company of any
material provision of this Agreement,
including, without limitation, the assignment
to Executive of any duties inconsistent with
Executive's position in the Company or an ad-
verse alteration in the nature or status of
Executive's responsibilities, provided,
however, that the Company shall have the
right to remove Executive from the position of
Treasurer and such removal shall not alone
constitute "Good Reason" hereunder;
ii) the Company's requiring Executive to be
based anywhere other than the metropolitan
area where he currently works and resides;
iii) the occurrence of a "Change in Control" as
defined below; or
iv) the Company's notifying Executive that it
does not consent to any automatic one-year
extension of the Term of Employment.
For purposes of this Agreement a "Change in Control" shall mean
an event as a result of which: (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934
(the "Exchange Act")), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company; (ii) the
Company consolidates with, or merges with or into another corporation
or sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any person, or any corporation
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding voting stock of
the Company is changed into or exchanged for cash, securities or other
property, other than any such transaction where (A) the outstanding
voting stock of the Company is changed into or exchanged for (x) voting
stock of the surviving or transferee corporation or (y) cash, securities
(whether or not including voting stock) or other property, and (B) the
holders of the voting stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than 50% of the voting
power of the voting stock of the surviving corporation immediately after
such transaction; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
the Company (together with any new directors whose election by such
Board or whose nomination for election by the stockholders of the
Company was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Board of the
Company then in office; or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation, provided however that a Change in Control
shall not include any going private or leveraged buy-out transaction
which is sponsored by Executive or in which Executive acquires an
equity interest materially in excess of his equity interest in the Company
immediately prior to such transaction (each of the events described in (i),
(ii), (iii) or (iv) above, as provided otherwise by the preceding clause
being referred to herein as a "Change in Control").
(b) Termination for Cause. The Company shall have
the right to terminate Executive's employment at any time for Cause by
giving Executive written notice of the effective date of termination
(which effective date may, except as otherwise provided below, be the
date of such notice). If the Company terminates Executive's employment
for Cause, Executive shall be paid his unpaid Base Salary through the
date of termination and the amount of any unpaid Bonus to which
Executive had become entitled under the Bonus Plan prior to the effective
date of such termination and the Company shall have no further obli-
gation hereunder from and after the effective date of termination and the
Company shall have all other rights and remedies available under this or
any other agreement and at law or in equity.
For purposes of this Agreement only, Cause shall mean:
i) fraud, misappropriation, embezzlement, or
other act of material misconduct against the
Company or any of its affiliates;
ii) substantial and willful failure to perform
specific and lawful directives of the Board or
any Supervising Officer, as reasonably deter-
mined by the Board;
iii) willful and knowing violation of any rules or
regulations of any governmental or regulatory
body, which is materially injurious to the
financial condition of the Company;
iv) conviction of or plea of guilty or nolo
contendere to a felony;
v) Executive's loss of any personal gaming or
related regulatory approval or license required
to perform his duties under this Agreement; or
vi) a final determination by a court of competent
jurisdiction that Executive breached the
Standstill Agreement of even date herewith by
and among Circus Circus Enterprises, Inc., a
Nevada corporation, Xxxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxxxxxx, Xxxxx X. Xxxxxxx, Xxxxx
X. Xxxxx XX, and Xxxxx X. Xxxxxxxxx;
provided, however, that with regard to subparagraph ii) above, Executive
may not be terminated for Cause unless and until the Board has given
him reasonable written notice of its intended actions and specifically de-
scribing the alleged events, activities or omissions giving rise thereto and
with respect to those events, activities or omissions for which a cure is
possible, a reasonable opportunity to cure such breach; and provided,
further, that for purposes of determining whether any such Cause is
present, no act or failure to act by Executive shall be considered "willful"
if done or omitted to be done by Executive in good faith and in the
reasonable belief that such act or omission was in the best interest of the
Company and/or required by applicable law.
(c) Termination on Account of Death. In the event
of Executive's death while in the employ of the Company, his
employment hereunder shall terminate on the date of his death and
Executive shall be paid his unpaid Base Salary through the date of
termination and the amount of any unpaid Bonus to which Executive had
become entitled under the Bonus Plan prior to the effective date of such
termination. In addition, any other benefits payable on behalf of
Executive shall be determined under the Company's insurance and other
compensation and benefit plans and programs then in effect in
accordance with the terms of such programs.
(d) Voluntary Termination by Executive. In the event
that Executive's employment with the Company is voluntarily terminated
by Executive other than for Good Reason, Executive shall be paid his
unpaid Base Salary through the date of termination and the amount of
any unpaid Bonus to which Executive had become entitled under the
Bonus Plan prior to the effective date of such termination, and the
Company shall have no further obligation hereunder from and after the
effective date of termination and the Company shall have all other rights
and remedies available under this Agreement or any other agreement and
at law or in equity. Executive shall give the Company at least 30 days'
advance written notice of his intention to terminate his employment
hereunder.
(e) Termination on Account of Disability. To the
extent not prohibited by The Americans With Disabilities Act of 1990 or
Chapter G13 of the Nevada Revised Statutes, if, as a result of
Executive's incapacity due to physical or mental illness (as determined
in good faith by a physician acceptable to the Company and Executive),
Executive shall have been absent from the full-time performance of his
duties with the Company for 120 consecutive days during any twelve
(12) month period or if a physician acceptable to the Company advises
the Company that it is likely that Executive will be unable to return to the
full-time performance of his duties for 120 consecutive days during the
succeeding twelve (12) month period, his employment may be termi-
nated for "Disability." During any period that Executive fails to perform
his full-time duties with the Company as a result of incapacity due to
physical or mental illness, he shall continue to receive his Base Salary,
Bonus and other benefits provided hereunder, together with all compen-
sation payable to him under the Company's disability plan or program or
other similar plan during such period, until Executive's employment
hereunder is terminated pursuant to this Section 5(e). Thereafter,
Executive's benefits shall be determined under the Company's retire-
ment, insurance, and other compensation and benefit plans and programs
then in effect, in accordance with the terms of such programs.
6. Confidential Information, Non-Solicitation and Non-
Competition.
(a) During the Term of Employment and for three
(3) years thereafter, Executive shall not, except as may be required to
perform his duties hereunder or as required by applicable law, disclose
to others or use, whether directly or indirectly, any Confidential Informa-
tion regarding the Company. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not available to the general
public and that was learned by Executive in the course of his em-
ployment by the Company, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information, and client and
customer lists and all papers, resumes, records (including computer
records) and the documents containing such Confidential Information.
Executive acknowledges that such Confidential Information is specialized,
unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. Upon the
termination of his employment for any reason whatsoever, Executive
shall promptly deliver to the Company all documents, computer tapes
and disks (and all copies thereof) containing any Confidential Information.
(b) During the period that Executive is receiving
payments under this Agreement (which Executive may elect to terminate
at any time), Executive shall not, directly or indirectly in any manner or
capacity (e.g., as an advisor, principal, agent, partner, officer, director,
shareholder, employee, member of any association or otherwise) engage
in, work for, consult, provide advice or assistance or otherwise
participate in any activity which is competitive with the business of the
Company in any geographic area in which the Company is now or shall
then be doing business. Executive further agrees that during such period
he will not assist or encourage any other person in carrying out any
activity that would be prohibited by the foregoing provisions of this
Section 6 if such activity were carried out by Executive and, in particular,
Executive agrees that he will not induce any employee of the Company
to carry out any such activity; provided, however, that the "beneficial
ownership" by Executive, either individually or as a member of a
"group," as such terms are used in Rule 13d of the General Rules and
Regulations under the Exchange Act, of not more than five percent (5%)
of the voting stock of any publicly held corporation shall not be a
violation of this Agreement. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to
compete with the Company or any subsidiary or affiliate of the Company
in violation of this Agreement and that the Company would by reason of
such competition be entitled to injunctive relief in a court of appropriate
jurisdiction, and Executive further consents and stipulates to the entry of
such injunctive relief in such a court prohibiting Executive from
competing with the Company or any subsidiary or affiliate of the
Company in violation of this Agreement.
(c) During the Term of Employment and for three
(3) years thereafter, Executive shall not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Company or any of
its subsidiaries or affiliates, to divert their business to any competitor of
the Company.
(d) Executive recognizes that he will possess
confidential information about other employees of the Company relating
to their education, experience, skills, abilities, compensation and
benefits, and interpersonal relationships with customers of the Company.
Executive recognizes that the information he will possess about these
other employees is not generally known, is of substantial value to the
Company in developing its business and in securing and retaining
customers, and will be acquired by him because of his business position
with the Company. Executive agrees that, during the Term of
Employment, and for a period of three (3) years thereafter, he will not,
directly or indirectly, solicit or recruit any employee of the Company for
the purpose of being employed by him or by any competitor of the
Company on whose behalf he is acting as an agent, representative or
employee and that he will not convey any such confidential information
or trade secrets about other employees of the Company to any other per-
son.
(e) If it is determined by a court of competent
jurisdiction in any state that any restriction in this Section 6 is excessive
in duration or scope or is unreasonable or unenforceable under the laws
of that state, it is the intention of the parties that such restriction may
be modified or amended by the court to render it enforceable to the
maximum extent permitted by the law of that state.
7. No Offset - No Mitigation. Executive shall not be re-
quired to mitigate damages under this Agreement by seeking other
comparable employment. The amount of any payment or benefit pro-
vided for in this Agreement, including welfare benefits, shall not be re-
duced by any compensation or benefits earned by or provided to him as
the result of employment by another employer, except as provided
otherwise in Section 5(a) with respect to health and insurance benefits
provided during the Salary Continuation Period.
8. Designated Beneficiary. In the event of the death of
Executive while in the employ of the Company, or at any time thereafter
during which amounts remain payable to Executive under Section 5, such
payments (other than the right to continuation of welfare benefits) shall
thereafter be made to such person or persons as Executive may
specifically designate (successively or contingently) to receive payments
under this Agreement following Executive's death by filing a written
beneficiary designation with the Company during Executive's lifetime.
Such beneficiary designation shall be in such form as may be prescribed
by the Company and may be amended from time to time or may be
revoked by Executive pursuant to written instruments filed with the
Company during his lifetime. Beneficiaries designated by Executive may
be any natural or legal person or persons, including a fiduciary, such as
a trustee or a trust or the legal representative of an estate. Unless
otherwise provided by the beneficiary designation filed by Executive, if
all of the persons so designated die before Executive on the occurrence
of a contingency not contemplated in such beneficiary designation, then
the amounts payable under this Agreement shall be paid to Executive's
estate.
9. Taxes. All payments to be made to Executive under this
Agreement will be subject to any applicable withholding of federal, state
and local income and employment taxes.
10. Miscellaneous. This Agreement shall also be subject
to the following miscellaneous considerations:
(a) Executive and the Company each represent and
warrant to the other that he or it has the authorization, power and right
to deliver, execute, and fully perform his or its obligations under this
Agreement in accordance with its terms.
(b) This Agreement contains a complete statement
of all the arrangements between the parties with respect to Executive's
employment by the Company, this Agreement supersedes all prior and
existing negotiations and agreements between the parties concerning
Executive's employment, and this Agreement can only be changed or
modified pursuant to a written instrument duly executed by each of the
parties hereto.
(c) If any provision of this Agreement or any portion
thereof is declared invalid, illegal, or incapable of being enforced by any
court of competent jurisdiction, the remainder of such provisions and all
of the remaining provisions of this Agreement shall continue in full force
and effect.
(d) This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada,
except to the extent governed by federal law.
(e) The Company may assign this Agreement to any
direct or indirect subsidiary or parent of the Company or joint venture in
which the Company has an interest, or any successor (whether by
merger, consolidation, purchase or otherwise) to all or substantially all of
the stock, assets or business of the Company and this Agreement shall
be binding upon and inure to the benefit of such successors and assigns.
Except as expressly provided herein, Executive may not sell, transfer, as-
sign, or pledge any of his rights or interests pursuant to this Agreement.
(f) Any rights of Executive hereunder shall be in
addition to any rights Executive may otherwise have under benefit plans,
agreements, or arrangements of the Company to which he is a party or
in which he is a participant, including, but not limited to, any Company-
sponsored employee benefit plans. Provisions of this Agreement shall
not in any way abrogate Executive's rights under such other plans,
agreements, or arrangements.
(g) For the purpose of this Agreement, notices and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered or
mailed by United States certified or registered mail, return receipt
requested, postage prepaid, addressed to the named Executive at the
address set forth below under his signature; provided that all notices to
the Company shall be directed to the attention of the Board with a copy
to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith,
except that notice of change of address shall be effective only upon
receipt.
(h) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part
of this Agreement for any other purpose.
(i) Failure to insist upon strict compliance with any
of the terms, covenants, or conditions hereof shall not be deemed a
waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of, or failure to insist upon strict compliance with, any
right or power hereunder at any one or more times be deemed a waiver
or relinquishment of such right or power at any other time or times.
(j) This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
11. Resolution of Disputes. Any dispute or controversy
arising under or in connection with this Agreement shall be settled
exclusively by arbitration, conducted before a panel of three arbitrators
in Las Vegas, Nevada in accordance with the rules of the American
Arbitration Association then in effect. The Company and Executive
hereby agree that the arbitrator will not have the authority to award
punitive damages, damages for emotional distress or any other damages
that are not contractual in nature. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however,
that the Company shall be entitled to seek a restraining order or
injunction in any court of competent jurisdiction to prevent any
continuation of any violation of the provisions of Section 6, and Execu-
tive consents that such restraining order or injunction may be granted
without the necessity of the Company's posting any bond except to the
extent otherwise required by applicable law. The expense of such
arbitration shall be borne by the Company.
12. Attorneys' Fees. Should either party hereto or their
successors retain counsel for the purpose of enforcing, or preventing the
breach of, any provision hereof, including, but not limited to, by
instituting any action or proceeding in arbitration or a court to enforce
any provision hereof or to enjoin a breach of any provision of this
Agreement, or for a declaration of such party's rights or obligations
under the Agreement, or for any other remedy, whether in arbitration or
in a court of law, then the successful party shall be entitled to be
reimbursed by the other party for all costs and expenses incurred
thereby, including, but not limited to, reasonable fees and expenses of
attorneys and expert witnesses, including costs of appeal. If such
successful party shall recover judgment in any such action or proceeding,
such costs, expenses and fees may be included in and as part of such
judgment. The successful party shall be the party who is entitled to
recover his costs of suit, whether or not the suit proceeds to final
judgment. If no costs are awarded, the successful party shall be
determined by the arbitrator or court, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment and Restatement of Agreement as of the day and year
first above written.
EXECUTIVE COMPANY
XXXXX X. XXXXXXXXX CIRCUS CIRCUS ENTERPRISES, INC.
By: XXXXX X. XXXXXXXXX By: XXXXX XXXXXX
Title: President, Treasurer and Title:
Chief Financial Officer Chairman of the Board and
Chief Executive Officer
Address:
