EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made on November 1, 1995 between Las
Vegas Sands, Inc., a Nevada corporation having its principal place of business
at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx, d/b/a Sands Hotel Casino
("LVSI") and Xxxxxxx X. Xxxxxxx, an individual residing at 00 Xxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx ("Xxxxxxx").
WHEREAS:
LVSI is engaged in the business of owning and operating a
hotel/casino on property owned by LVSI on the "Strip" in Las Vegas, Nevada
(the "Sands Property");
LVSI desires to reconstruct and expand the existing hotel/casino and
to further develop the adjacent parcels on the Sands Property and to
construct new improvements thereon (the "Development Project");
In furtherance of its business and development plans, LVSI has
need of qualified, experienced, management personnel;
Xxxxxxx has represented to LVSI that Xxxxxxx possesses sufficient
qualifications, experience and expertise in hotel and casino operations
and management to fulfill the terms of the employment described in this
Agreement; and
LVSI has offered to employ Xxxxxxx, and Xxxxxxx desires to become
employed by LVSI, under the terms, provisions and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, understandings, representations, warranties, undertakings and
promises hereinafter set forth, and intending to be legally bound thereby, LVSI
and Xxxxxxx agree as follows:
1. Employment. LVSI shall employ Xxxxxxx, during the term and
subject to the conditions set forth in this Agreement, to serve as President of
LVSI or in such other managerial or executive capacity as the Board of Directors
of LVSI (sometimes hereinafter referred to as "the Board") may from time to time
determine.
2. Duties. Xxxxxxx shall have such powers, duties and
responsibilities as are generally associated with his office, as the same may be
modified and/or assigned to Xxxxxxx from time to time by the Chairman of the
Board, and subject to the supervision, direction and control of the Chairman and
the Board, including but not limited to:
(a) participation and involvement in the proposed development
activities of XXXX,
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including the planning, financing, construction and implementation stages, as
shall be requested by the Chairman of the Board;
(b) the efficient operation and maintenance of the hotel and casino
properties of LVSI;
(c) the promotion, marketing and sale of the goods and services
offered by LVSI;
(d) the preparation of budgets and allocation of funds;
(e) the establishment or continuation of adequate management
reporting and control systems;
(f) the recruitment, selection, training, delegation of duties and
responsibilities, and supervision, of subordinates; and
(g) the direction, review and oversight of all programs, systems,
departments and functions related to the management and administration of LVSI.
3. Performance. Xxxxxxx hereby unconditionally accepts the
employment described herein under the terms and conditions set forth in this
Agreement. Xxxxxxx covenants and agrees faithfully and diligently to perform all
of the duties of his employment, devoting his full business and professional
time, attention, energy and ability to promote the business interests of LVSI.
Xxxxxxx further agrees that during the period of his employment with LVSI, he
will not engage in any other business or professional pursuit whatsoever unless
LVSI shall consent thereto in writing.
4. Term. The parties acknowledge that Xxxxxxx is presently under
contract to another employer, which contract will expire on December 31, 1995.
The term of Xxxxxxx'x employment hereunder shall commence (the "Effective Date")
on the earlier of (a) January 1, 1996, or (b) such earlier date on which Xxxxxxx
shall advise LVSI that he has been released from his prior contractual
commitment and is ready to report for work with LVSI. The initial term of this
Agreement (the "Initial Term") shall expire on December 31, 1998, unless sooner
terminated as provided herein. The Initial Term may be automatically extended by
LVSI for an additional two years (the "Renewal Term") upon the giving of written
notice to Xxxxxxx not less than 120 days prior to the expiration of the Initial
Term.
5. Licensing Requirement. Xxxxxxx has represented to LVSI that he is
presently licensed by the New Jersey Casino Control Commission. The parties
acknowledge that, in order to discharge the duties required under this Agreement
and to hold the Options provided for herein, Xxxxxxx must apply for and obtain a
casino key employee and equity holder license ("the License") issued by the
Nevada Gaming Commission upon the recommendation of the state Gaming Control
Board (collectively, the "Nevada Gaming Authorities"), pursuant to the
provisions of applicable Nevada laws and regulations. LVSI and Xxxxxxx agree to
cooperate with
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the Nevada Gaming Authorities, the Board and with each other in applying for the
License and in removing any objections that may be raised by the Nevada Gaming
Authorities in connection with the granting of the License. If the Nevada Gaming
Authorities shall refuse to grant the License to Xxxxxxx, then this Agreement
shall terminate and neither LVSI nor Xxxxxxx shall have any further obligation
hereunder.
6. Compensation. For all of the services to be rendered by Xxxxxxx
to LVSI hereunder, LVSI shall pay Xxxxxxx the following:
(a) Salary. During the Initial Term, Xxxxxxx shall receive a
salary of Seven Hundred Seventy Two Thousand Seven Hundred and Seventeen Dollars
($772,717) per year, payable in accordance with the usual payroll practices of
LVSI. During the Renewal Term, if any, this salary shall be increased by a
percentage equal to the percentage increase in the Consumer Price Index, All
Urban Consumers, All Items, Las Vegas Area (the "Index") between the last
published Index as of the date on which the Renewal Term begins and the last
published Index as of the date which is one year earlier. No such adjustment
shall be made in the event that, prior to the commencement of the Renewal Term,
LVSI has established for Xxxxxxx a written incentive compensation program.
Except as provided herein, Xxxxxxx shall not be considered for any additional
incentive or bonus compensation.
(b) Employee Benefit Plans. LVSI shall include Xxxxxxx in any
group health, medical, dental, hospitalization, life or accident insurance
plans, and any qualified pension, profit sharing or retirement plans, which may
be placed in effect or maintained by LVSI during the Term hereof for the benefit
of its employees generally, subject to all restrictions and limitations
contained in such plans or established by governmental regulation.
(c) Expense Reimbursement. Xxxxxxx is authorized to incur such
reasonable expenses as may be necessary for the performance of his duties
hereunder in accordance with the policies of LVSI established and in effect from
time to time and, except as may be otherwise agreed, LVSI will reimburse Xxxxxxx
for all such authorized expenses upon submission of an itemized accounting and
substantiation of such expenditures adequate to secure for LVSI a tax deduction
for the same in accordance with applicable Internal Revenue Service guidelines.
(d) Vacations and Holidays. Xxxxxxx shall be entitled to four
weeks of paid vacation leave per year at such times as may be requested by
Xxxxxxx and approved by LVSI. No more than three weeks of vacation shall be
taken consecutively. Up to two weeks of vacation may be carried over to the
following year (but not to the next). In addition, Xxxxxxx may take the
following paid holidays or, at LVSI's option, an equivalent number of paid days
off: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and Christmas Day.
(e) Licensing Expenses. LVSI shall pay all fees and expenses
incurred by Xxxxxxx in securing and maintaining such licenses and permits as may
be required by the Nevada
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Gaming Authorities in order to perform his duties under this Agreement.
(f) Relocation Expenses. LVSI shall reimburse Xxxxxxx for the
following expenses associated with Xxxxxxx'x relocation to Las Vegas, Nevada
("Relocation Expenses"):
(i) LVSI shall engage and pay for the services of a
professional moving company to pack, ship, store (for up to 30
days), insure in transit, and unpack Xxxxxxx'x family's household
goods and personal property, including automobiles, from his present
home to his new living quarters in Las Vegas, Nevada. However, LVSI
will not pay the cost of shipping such items as boats, trailers, or
perishables.
(ii) LVSI shall reimburse Xxxxxxx for reasonable
expenses incurred by him and his family in connection with travel
and lodging expenses for house hunting trips made on or before July
1, 1996, provided that travel arrangements are made through LVSI's
affiliate, GWV Travel of Needham, Massachusetts ("GWV");
(iii) The cost of reasonable travel by Xxxxxxx between
New Jersey and Nevada on or before August 1, 1996 shall be paid by
LVSI, travel arrangements to be made through GWV;
(iv) LVSI shall provide, at no cost to Xxxxxxx,
temporary living accommodations and reasonable related expenses in
its hotel facility or elsewhere until August 1, 1996 or such earlier
date as his family shall relocate to Nevada;
(v) If requested by Xxxxxxx on or before July 31, 1996,
LVSI shall, in connection with Xxxxxxx'x purchase of a new home in
Nevada, make or arrange for an equity loan secured by Xxxxxxx'x
current home in New Jersey which loan shall be repayable upon the
sale of that home;
(vi) LVSI shall track and report all expenses paid in
connection with Xxxxxxx'x relocation in accordance with all Internal
Revenue Service rules and regulations in effect in 1996; and
(vii) The parties expressly agree and acknowledge that
other costs incurred by Xxxxxxx in connection with the relocation of
his principal residence from New Jersey to Nevada shall be borne by
Xxxxxxx and not LVSI;
provided, however, that if Xxxxxxx'x employment with LVSI shall terminate by
reason of a Cause Termination, Xxxxxxx Breach Termination, Voluntary
Termination, or Licencing Termination (all as defined in Section 11 (a)) during
the first twelve (12) months after the Effective Date, he shall repay 75% of
such Relocation Expenses to LVSI, and if such a termination shall occur after 12
months but before 24 months, he shall repay 50% of such Relocation Expenses to
LVSI, in each
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case such reimbursement to occur within thirty (30) days following the
Termination Event.
(g) Lump Sum Auto. In lieu of any provision for the use of a
company-owned vehicle, or for any allowance for an automobile lease, insurance,
fuel, repair and maintenance expenses, LVSI shall pay to Xxxxxxx an annual lump
sum of $7,200.00 which sum shall be paid in installments which shall be added to
and paid with the salary provided for in Section 6(a) hereof. If LVSI shall ever
adopt a policy or program to provide selected executives with company-owned or
leased vehicles, it shall include Xxxxxxx in that policy or program and the lump
sum provided for herein may cease.
(h) Club Expenses. LVSI shall reimburse Xxxxxxx for the
membership initiation fees (up to a maximum of $20,000.00) and annual dues and
assessment related to one club membership at a country or social club selected
by Xxxxxxx in the Las Vegas area. If the initiation fee shall be in the form of
a refundable bond or equity, Xxxxxxx shall repay such sum to LVSI within 90 days
of the termination of his employment hereunder.
7. Stock Options. In consideration of the execution and performance
of this Agreement, in addition to all other sums payable hereunder, LVSI or its
principal shareholder, Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), (LVSI and Xxxxxxx being
hereinafter sometimes referred to, collectively or individually, as "Grantor")
shall grant to Xxxxxxx the right to acquire certain shares of the common capital
stock of LVSI (or of such alternative or other entity as may be formed by
Grantor to construct and own the Development Project, as limited pursuant to
Section 7(e) hereof, or to enter into a joint-venture or other arrangement to
accomplish the same) ("Shares"), as follows:
(a) Following execution of this Agreement and receipt of the
License, Grantor shall grant to Xxxxxxx options (the "Options") to acquire
Shares representing two percent (2%) of the Shares which shall be issued and
outstanding upon the issuance of all Shares for which options have been or may
be granted under this Agreement or any of the other employment agreements
executed simultaneous herewith or presently contemplated (the "Fully Diluted
Number").
(b) One-half of the Options shall be exercisable by Xxxxxxx on
the date that the first phase of the Development Project, comprised of a
newly-constructed major hotel/casino shall open for business to the public
("Grand Opening Date") and one-sixth of the Options shall be exercisable by
Xxxxxxx on each of the next three anniversaries of the Grand Opening Date (the
"Subsequent Vesting Dates"), provided, however, that if the Grand Opening Date
shall occur after January 1, 1998, the Subsequent Vesting Dates shall be
December 31, 2000 (the "Final Vesting Date") and two earlier dates such as shall
divide into three equal periods the time between the Grand Opening Date and the
Final Vesting Date.
(c) Upon exercise of the Options, Xxxxxxx shall pay to the
Grantor a price for each of the Shares (the "Exercise Price") equal to (i) the
value, at the time of a financing transaction for the purpose of constructing a
hotel/casino, determined by the investment banking
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firm retained by LVSI to advise LVSI with respect to such transaction (the
"Investment Banking Value"), of the land owned by LVSI on the Effective Date
underlying the Development Project (as defined and limited by Subparagraph (e)
below), plus (ii) the amount of any cash equity contributed to LVSI by Xxxxxxx
or persons other than Xxxxxxx after the date hereof and prior to the date on
which such Options are exercised, plus (iii) the value of any real or personal
property similarly contributed as it appears on the books of LVSI; divided by
(iv) the Fully Diluted Number.
(d) Each and all of the Options shall expire ("the Option
Expiration Date") on the earlier of (i) the date which is three (3) days prior
to the effective date of any public offering of LVSI stock as the same shall be
referenced in a request for acceleration or other document filed by LVSI with
the U.S. Securities and Exchange Commission, (ii) the date which is three (3)
days prior to the designated closing date in any agreement providing for the
merger of LVSI or the sale of all or substantially all of its assets or a
majority of its stock (other than a transaction pursuant to Section 12 hereof),
or (iii) eight (8) years from the date on which the Options were granted;
provided that all Options granted but not otherwise exercisable by the Option
Expiration Date shall be accelerated and shall become exercisable for a period
of ten (10) days (the "Accelerated Exercise Period") immediately preceding the
Option Expiration Date, provided that no Options shall expire pursuant to (i) or
(ii) above unless LVSI has given Xxxxxxx notice of the Accelerated Exercise
Period promptly upon its learning of the time (or approximate time) when the
Accelerated Exercise Period will occur.
(e) Xxxxxxx understands and acknowledges that the Development
Project shall include a retail merchandise shopping or other consumer
"experience" or attraction (the "Retail Portion"), ownership of which shall be
in an entity other than that for which the Options shall have been issued. It is
anticipated that the entity issuing the Shares pursuant to the Options granted
hereunder shall own and operate only one or more hotel/casinos and not the
Retail Portion of the Development Project, the Sands Expo and Convention Center,
or related parking facilities which, together with the land (or other interest
in real estate) on which they are located, may be owned by or, after the date
hereof, be transferred to, persons affiliated with LVSI and operated in
coordination with the hotel/casinos of LVSI.
(f) Shares issued to Xxxxxxx hereunder may be pledged to a
financial institution to secure a loan the proceeds of which are used to pay to
LVSI the Exercise Price or to pay taxes payable by Xxxxxxx in connection with
his acquisition of the Shares. The Options granted and Shares issued hereunder
may not be otherwise assigned, transferred or pledged by Xxxxxxx, and Xxxxxxx
will have no rights as a shareholder in LVSI unless and until Shares have been
issued to him hereunder. Except as set forth above, the Shares shall be subject
to restrictions on transfer and to such additional restrictions as shall be
imposed by the Articles of Incorporation or Bylaws of LVSI or by applicable law.
8. Confidentiality. Xxxxxxx agrees that he will hold in strictest
confidence and, without the prior express written approval of LVSI, will not
disclose to any person, firm, corporation or other entity, any confidential
information which he has acquired or may hereafter
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acquire during his employment by LVSI pertaining to the business or affairs of
LVSI, including but not limited to (i) proprietary information or other
documents concerning LVSI's policies, prices, systems, methods of operation,
contractual arrangements, customers or suppliers; (ii) LVSI's marketing methods,
credit and collection techniques and files; and (iii) LVSI's trade secrets and
other "know how" or information concerning its business and affairs not of a
public nature. The covenant and agreement set forth in this Section shall apply
during Xxxxxxx'x employment by LVSI and shall survive termination of this
Agreement by any means and shall remain binding upon Xxxxxxx without regard to
the passage of time or other events.
9. Restrictive Covenant. Xxxxxxx shall not, either during the term
of this Agreement or until December 31, 1998 (the "Restrictive Covenant
Expiration Date") if the Agreement terminates prior to the end of the Initial
Term by reason of a Cause Termination, Xxxxxxx Breach Termination, Voluntary
Termination, or Licensing Termination (all as defined in Section 11 (a)), or by
reason of an LVSI Breach Termination, Constructive Termination, or Involuntary
Termination if and only if LVSI is paying to Xxxxxxx the amount set forth in
Section 11 (d) (iv), directly or indirectly, either as principal, agent,
employee, consultant, partner, officer, director, shareholder, or in any other
individual or representative capacity, own, manage, finance, operate, control or
otherwise engage or participate in any manner or fashion in, any hotel or casino
in the City of Las Vegas or Xxxxx County, Nevada. In the event that this
Agreement shall be extended beyond the Initial Term, the Restrictive Covenant
Expiration Date shall be extended to the second anniversary of the date of any
Termination Event. Xxxxxxx acknowledges and agrees that the restrictive covenant
contained in this Section is reasonable as to duration, terms, and geographical
scope and that the covenant protects the legitimate interests of LVSI and
imposes no undue hardship on Xxxxxxx and is not injurious to the public.
10. Disability. If, during his employment by LVSI, Xxxxxxx shall, in
the opinion of an independent physician selected by agreement between the Board
and Xxxxxxx, become suddenly and immediately unable to perform the duties of his
employment due to severe illness or accident or other grave mental or physical
incapacity, or if Xxxxxxx shall be unable to perform the duties of his
employment for a continuous period of three months, then LVSI shall have the
right to suspend in whole or in part the future payments of compensation
hereunder or to terminate Xxxxxxx'x employment hereunder in accordance with the
provisions of Section 11.
11. Termination.
(a) Notwithstanding the provisions of Section 4 of this
Agreement, Xxxxxxx'x employment hereunder shall terminate upon the occurrence of
any of the following events (each, a "Termination Event"):
(i) Xxxxxxx'x death (a "Death Termination");
(ii) the giving of written notice of termination by LVSI
based upon Xxxxxxx'x disability, as defined in Section 10 hereof (a
"Disability Termination");
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(iii) the giving of written notice to Xxxxxxx by LVSI
that he is discharged for Cause (as hereinafter defined) (a
"Cause Termination");
(iv) the giving of written notice by LVSI to Xxxxxxx of
a material breach of this Agreement by Xxxxxxx, which breach remains
uncured for a period of ten (10) days after receipt of such notice
by Xxxxxxx (a "Xxxxxxx Breach Termination");
(v) the giving of written notice by Xxxxxxx to LVSI of a
material breach of this Agreement by LVSI, which breach remains
uncured for a period of ten (10) days following receipt of such
notice by LVSI (an "LVSI Breach Termination");
(vi) the giving of written notice by Xxxxxxx to LVSI
that a Constructive Termination (as hereinafter defined) has
occurred and that he has elected to resign, in which event
termination shall occur thirty (30) days after delivery of such
notice unless such Constructive Termination has been cured (a
"Constructive Termination");
(vii) the giving of sixty (60) days written notice to
Xxxxxxx by LVSI that LVSI has chosen to terminate this Agreement
without Cause (an "Involuntary Termination");
(viii) the giving of written notice by Xxxxxxx that he
has chosen to terminate his employment with LVSI, no breach or
Constructive Termination by LVSI having occurred, in which case this
Agreement shall terminate sixty (60) days after receipt of such
notice by LVSI (a "Voluntary Termination");
(ix) the refusal of the Nevada Gaming Authorities to
grant to Xxxxxxx the License described in Section 5 hereof or,
following the grant of the License, the revocation or suspension of
the License for a period longer than thirty (30) days (a "Licensing
Termination"); or
(x) if no notice of extension for a Renewal Term is sent
by LVSI upon the discharge of Xxxxxxx at the end of the Initial Term
(a "Non-Renewal Termination") or at any time thereafter (a
"Post-Contract Termination").
(b) "Cause," as used in Subsection (a)(iii) above, shall mean:
(i) conviction of a felony, misappropriation of any
material funds or property of LVSI, commission of fraud or
embezzlement with respect to LVSI, or any material act or acts of
dishonesty relating to Xxxxxxx'x employment by LVSI resulting or
intended to result in direct or indirect personal gain or
8
enrichment at the expense of LVSI;
(ii) use of alcohol or drugs that renders Xxxxxxx
materially unable to perform the functions of his job or carry out
his duties to LVSI;
(iii) materially failing to fulfill the duties set forth
in Section 2 hereof; or
(iv) committing any act or acts of serious and wilful
misconduct (including disclosure of confidential information) that
is likely to cause a material adverse effect on the business of
LVSI;
provided that, with respect to (iii) or (iv) above, LVSI shall have first
provided Xxxxxxx with written notice stating with specificity the acts, duties
or directives Xxxxxxx has committed or failed to observe or perform, and Xxxxxxx
shall not have corrected the acts or omissions complained of within thirty (30)
days of receipt of such notice. Any dispute between the parties as to whether a
"cause" has occurred shall be resolved by binding Arbitration in Las Vegas,
Nevada before a single arbitrator jointly selected by the parties or, if the
parties cannot agree, by the American Arbitration Association, such arbitration
to be conducted in accordance with the rules of the American Arbitration
Association.
(c) "Constructive Termination," as used in Subsection (a)(vi) above,
shall mean:
(i) the failure of LVSI to re-elect Xxxxxxx as a named
officer of LVSI;
(ii) a material change in the duties and
responsibilities of office that would cause Xxxxxxx'x position to
have less dignity, importance or scope than intended at the
Effective Date and as set forth herein;
(iii) liquidation, dissolution or bankruptcy of LVSI; or
(iv) failure of LVSI to proceed with the Development
Project, including obtaining financing for the Development Project,
within eighteen (18) months after the Effective Date.
(d) Termination pursuant to this Section shall have the following
consequences:
(i) in the case of a Death Termination, salary shall be
paid through the date of death, all unexercised Options shall be
automatically canceled and the
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Shares issued to Xxxxxxx shall be redeemed by LVSI for a price
payable by LVSI to Xxxxxxx'x estate equal to all sums paid by
Xxxxxxx for Shares, plus the difference between (x) the Exercise
Price paid or payable for all Shares purchased pursuant to Options
and for all Options granted but not yet exercised, and (y) the Fair
Market Value (as hereafter defined) of such Shares, which price
shall be payable by LVSI, with interest at the Applicable Federal
Rate (as hereafter defined) on the date of death, in thirty-six (36)
equal consecutive monthly installments of interest and principal
commencing ninety (90) days following the date on which Fair Market
Value is established;
(ii) in the case of a Disability Termination, salary,
less any applicable disability insurance payments, shall be
continued for a period of six months following the date of
termination, and all Options and Shares issued to Xxxxxxx shall be
treated as described in the immediately preceding Subsection (i);
(iii) in the case of a Cause Termination, Xxxxxxx Breach
Termination, Voluntary Termination, or Licensing Termination, salary
and benefits payable to Xxxxxxx shall immediately cease, subject to
any requirements of law, all unexercised Options held by Xxxxxxx
shall be canceled and forfeited, Shares held by Xxxxxxx shall be
redeemed by LVSI for a price payable by LVSI to Xxxxxxx equal to the
lesser of the Exercise Price for such Shares or the Fair Market
Value on the date of termination, which price shall be payable, with
interest at the Applicable Federal Rate on the date of termination,
in sixty (60) equal consecutive monthly installments of interest and
principal commencing ninety (90) days following the date on which
Fair Market Value is established;
(iv) in the case of an LVSI Breach Termination,
Constructive Termination, or Involuntary Termination, LVSI shall
continue to pay to Xxxxxxx the salary set forth in Section 6(a)
hereof for the Term of this Agreement unless and until Xxxxxxx shall
become employed elsewhere in which event LVSI shall pay only the
difference, if any, between the income earned in such employment,
including salary and bonus compensation, and the salary set forth in
Section 6(a) hereof; provided further that all unexercised Options
held by Xxxxxxx shall be canceled and forfeited, Shares held by
Xxxxxxx shall be redeemed by LVSI for a price payable by LVSI to
Xxxxxxx equal to the greater of the Exercise Price for such Shares
or the Fair Market Value on the date of termination, which price
shall be payable, with interest at the Applicable Federal Rate on
the date of termination, in thirty-six (36) equal consecutive
monthly installments of interest and principal commencing ninety
(90) days following the date in which Fair Market Value is
established. In the case of a Non-Renewal Termination or a
Post-Contract Termination, salary shall be paid only through the
date of discharge;
(v) in the case of a Non-Renewal Termination, or a Post
Contract Termination, all Options and Shares issued to Xxxxxxx shall
be treated as described
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in Subsection (i) above.
(e) "Fair Market Value" as used in this Section, shall mean
and refer to the fair market value as agreed by LVSI and Xxxxxxx (or, in the
case of a Death Termination or Disability Termination, his personal or legal
representative) or, in the absence of such agreement, as determined by an
appraisal conducted by a national investment banking firm selected and paid by
LVSI. "Applicable Federal Rate," as used herein, shall mean and refer to the
rate published from time to time by the U.S. Internal Revenue Service and
designated as the applicable federal rate, as such rate shall prevail on the
date on which the Redemption Note (as hereafter defined) is issued.
(f) Any redemption of Shares provided for in this Section
shall take place as follows: Not later than thirty (30) days following any
Termination Event, Xxxxxxx (or his personal representative) shall surrender to
LVSI all certificates for Shares and, whether so surrendered or not, such Shares
shall thereupon be canceled. LVSI shall, upon receipt of the Shares and
determination of the Fair Market Value as set forth above, deliver to Xxxxxxx
(or his personal representative) a promissory note (the "Redemption Note") for
the sum payable to Xxxxxxx in respect of his Shares (the "Redemption Price").
The Redemption Note shall be payable over the term hereinabove provided, with
interest fixed at the Applicable Federal Rate, in equal consecutive monthly
installments of interest and principal. The Redemption Note and all payments
thereunder shall be, in all respects, subject to the limitations and
restrictions, if any, imposed by any note, credit facility, indenture, mortgage,
line of credit or similar contractual arrangement with an institutional or
similar lender by which LVSI is or may become bound ("Lender Restrictions"),
whether in the form of financial covenants or otherwise and whether arising
prior to or after execution and delivery of the Redemption Note. No failure by
LVSI to pay sums due on the Redemption Note on account of the Lender
Restrictions shall result in a default under the Redemption Note and all such
payments, to the extent (and only to the extent) prohibited by the Lender
Restrictions, shall be deferred and accrue until such time as they may be paid
without violating the Lender Restrictions.
(g) In the event that, at the time of any Termination Event, the
Shares shall be publicly traded, either on a registered securities exchange or
in the over-the-counter market, all provisions hereof providing for the
redemption of Shares by LVSI shall be void.
12. Assignment and Assumption. LVSI and Xxxxxxx acknowledge and
agree that the Development Project or any subsequent public offering of
securities may lead to a restructuring or other reorganization of LVSI or its
assets. In such event, this Agreement may be assigned to, and assumed by, any
new or different corporation, limited liability company or other entity that
shall own the hotel/casinos constructed on the Sands Property and Xxxxxxx'x
employment shall continue pursuant to the terms hereof as if such assignee,
rather than LVSI, had been an original party to this Agreement. Upon such
assignment, all rights and obligations of LVSI hereunder shall inure to the
benefit of and be binding upon the designated assignee. No such assignment shall
relieve LVSI of its obligations hereunder to the extent that those obligations
are not satisfied or discharged by the assignee.
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13. Approval of Agreement. Xxxxxxx and LVSI acknowledge that the
terms of this Agreement are subject to the approval of the Nevada Gaming
Authorities and each agrees to make reasonable modifications in this Agreement,
if necessary, to secure such approval. If this Agreement shall be disapproved by
the Nevada Gaming Authorities and reasonable modifications shall be insufficient
to obtain such approval, then this Agreement shall terminate and neither party
shall have any further responsibility to the other hereunder.
14. Miscellaneous Provisions.
(a) [Notices] All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if sent via a national overnight courier service or by certified mail,
return receipt requested, postage prepaid, addressed to the parties as follows:
If to Xxxxxxx, to:
Xxxxxxx X. Xxxxxxx
00 Xxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Scatchard PA
Suite 300
0000 Xxxxxxxxx Xxxxx
Xx. Xxxxxx, XX 00000
If to LVSI, to:
Las Vegas Sands, Inc.
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Att: Xxxxxxx X. Xxxxxxx, Chairman
With a copy to:
Xxxx X. Xxxxxxx
Vice President and General Counsel
The Interface Group
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
12
or to such other address as any party shall request of the others by giving
notice in accordance with this Section.
(b) [Approval or Consent] Whenever under any provision of this
Agreement the approval or consent of either party is required, said approval or
consent shall be given or denied in a prompt manner.
(c) [Integration] This Agreement is the result of substantial
negotiations between the parties, represents the complete agreement of the
parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings.
(d) [Severability] If any provision of this Agreement shall be
declared void or unenforceable by any judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
(e) [Waiver of Provisions] The failure of either party to insist
upon a strict performance of any of the terms or provisions of this Agreement or
to exercise any option, right, or remedy herein contained, shall not be
construed as a waiver or as a relinquishment for the future of such term,
provision, option, right, or remedy, but the same shall continue and remain in
full force and effect. No waiver by either party of any term or provision hereof
shall be deemed to have been made unless expressed in writing and signed by such
party.
(f) [Fees and Expenses] Each of the parties hereto shall bear its
own attorneys fees, consultants fees and other costs, fees, and expenses
incurred in connection with the negotiation, preparation and consummation of
this Agreement and the transactions contemplated hereby.
(g) [Amendments] This Agreement may not be amended, changed or
modified except by a written document signed by each of the parties hereto.
(h) [Successors and Assigns] All provisions of this Agreement shall
be binding upon, inure to the benefit of, and be enforceable by and against the
parties hereto, and their respective heirs, personal representatives, successors
and permitted assigns.
(i) [Governing Law] This Agreement shall be governed by, construed
under, and interpreted in accordance with the laws of the State of Nevada, and
enforced (except as otherwise provided herein) only in its state and federal
courts.
(j) [Headings] Section and Subsection headings in this Agreement are
included for convenience of reference only and are not intended to define, limit
or describe the scope or intent of any provision of this Agreement.
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(k) [Counterparts] This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(l) [Survival] The representations, warranties, and covenants
contained in this Agreement shall survive its termination for any reason.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as a contract under seal.
LAS VEGAS SANDS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
XXXXXXX X. XXXXXXX
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TERMINOLOGY USED IN THIS AGREEMENT
TERM DEFINED AT
Accelerated Exercise Period ss.7(d)
Xxxxxxx xx.7
Applicable Federal Rate ss.11(e)
Agreement Recitals
Board ss.1
Cause ss.11(b)
Cause Termination ss.11(a)(iii)
Constructive Termination ss.11(c)
Death Termination ss.11(a)(i)
Development Project Recitals
Disability Termination ss.11(a)(ii)
Effective Date ss.4
Exercise Price ss.7(c)
Fair Market Value ss.11 (e)
Final Vesting Date ss.7(b)
Fully Diluted Number ss.7(a)
Grand Opening Date ss.7(b)
Grantor ss.7
GWV ss.6(f)(ii)
Index ss.6(a)
Initial Term ss.4
Investment Banking Value ss.7(c)
Involuntary Termination ss.11(a)(vii)
Lender Restrictions ss.11(f)
License ss.5
Licensing Termination ss.11(a)(ix)
LVSI Recitals
LVSI Breach Termination ss.11(a)(v)
Nevada Gaming Authorities ss.5
Non-Renewal Termination ss.11(a)(x)
Options ss.7(a)
Option Expiration Date ss.7(d)
Post-Contract Termination ss.11(a)(x)
Redemption Note ss.11(f)
Redemption Price ss.11(f)
Relocation Expenses ss.6(f)
Renewal Term ss.4
Restrictive Covenant Expiration Date ss.9
Retail Portion ss.7(e)
Sands Property First Whereas, paragraph
Shares ss.7
Subsequent Vesting Dates ss.7(b)
Termination Event ss.11(a)
Voluntary Termination ss.11(a)(viii)
Xxxxxxx Recitals
Xxxxxxx Breach Termination ss.11(a)(iv)
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