AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment (this "Amendment") is made this 20th day of December,
2004, by and between Xxx Xxxxx Xxxxxxx ("Executive"), an individual, and The
Majestic Star Casino, LLC, an Indiana limited liability company dba Majestic
Star and Majestic Investor (the "Company").
RECITALS
A. Each of the undersigned is a party to that certain Employment
Agreement entered into as of October 21, 2002, as amended on April 20, 2004,
(collectively the "Employment Agreement").
B. The parties hereto desire to amend the Employment Agreement as
set forth herein and desire that, except as set forth in this Amendment, the
Employment Agreement shall remain in full force and effect in accordance with
its terms.
NOW THEREFORE, in consideration of the premises and respective
representations, warranties, covenants, agreement and conditions hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree that the
foregoing recitals are true and correct, and further agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Employment
Agreement.
2. Amendment. The Employment Agreement is amended by this Amendment
as follows:
(a) THE PERIOD OF EMPLOYMENT SHALL BE EXTENDED FOR AN
ADDITIONAL NINE (9) MONTH PERIOD, WHICH PERIOD SHALL COMMENCE ON APRIL 21, 2005,
AND CONCLUDE ON JANUARY 20, 2006 (THE "EXTENDED TERM");
(b) EFFECTIVE JANUARY 1, 2005, EXECUTIVE'S ANNUAL BASE
SALARY SHALL BE $275,000.00, TO BE PAID IN ACCORDANCE WITH THE COMPANY'S PAYROLL
PRACTICES IN PLACE FROM TIME TO TIME;
(c) THE PERIOD OF EMPLOYMENT AND ALL TERMS AND CONDITIONS
CONTAINED IN THE EMPLOYMENT AGREEMENT SHALL AUTOMATICALLY, COMPLETELY, AND
FINALLY EXPIRE AND NONE SHALL RENEW FOR ANY PURPOSE WHATSOEVER AT THE CONCLUSION
OF THE EXTENDED TERM UNLESS THE COMPANY PROVIDES THE EXECUTIVE AT LEAST NINETY
(90) DAYS ADVANCE WRITTEN NOTICE OF COMPANY'S EXPRESS INTENTION TO RENEW THE
PERIOD OF EMPLOYMENT OR ANY TERM OR CONDITION CONTAINED IN THE EMPLOYMENT
AGREEMENT;
(d) THAT UNLESS THE COMPANY RENEWS THE PERIOD OF EMPLOYMENT
AND/OR ANY TERM OR CONDITION CONTAINED IN THE EMPLOYMENT AGREEMENT IN
ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN PARAGRAPH 2(b) OF THIS AMENDMENT,
THE EXECUTIVE SHALL CEASE TO BE EMPLOYED PURSUANT TO ANY TERM AND CONDITION SET
FORTH IN THE EMPLOYMENT AGREEMENT AND SHALL COMMENCE AT-WILL EMPLOYMENT BY THE
COMPANY EFFECTIVE JANUARY 21, 2006, WHICH SHALL ALLOW THE COMPANY TO TERMINATE
EXECUTIVE'S EMPLOYMENT WITH OR WITHOUT CAUSE AT ANY TIME; PROVIDED, HOWEVER,
THAT IF THE COMPANY EXERCISES ITS RIGHTS UNDER THIS PARAGRAPH 2(c), COMPANY
SHALL GIVE EXECUTIVE AT LEAST NINETY (90) DAYS ADVANCE WRITTEN NOTICE OF ITS
INTENTION TO EXERCISE THIS RIGHT AND MAY PAY EXECUTIVE THE EQUIVALENT OF NINETY
(90) DAYS SALARY (AS SET FORTH ABOVE) IN LIEU OF NINETY (90) DAYS NOTICE; AND,
(e) SHOULD EXECUTIVE CEASE HIS EMPLOYMENT PRIOR TO RECEIPT
OF PAYMENT OF ANY BONUS THAT MAY BE DUE EXECUTIVE FOR PERFORMANCE OCCURRING IN
2005, THE COMPANY SHALL NONETHELESS BE REQUIRED TO DELIVER TO EXECUTIVE SUCH
BONUS.
3. No Implied Amendments. Except as expressly provided herein, the
Employment Agreement is not being amended, supplemented, or otherwise modified,
and the Employment Agreement shall continue in force and effect in accordance
with its terms.
4. Counterparts. This Amendment may be executed in one or more
counterparts, including, without limitation, facsimile counterparts, each of
which shall be deemed an original but all such counterparts together shall
constitute one and the same agreement.
5. Binding Effect and Amendment. This Amendment shall be binding
upon the parties hereto and their permitted successors and assigns under the
Employment Agreement. This Amendment may be amended, altered or changed only by
an instrument in writing signed by all of the parties hereto.
6. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Nevada.
7. Notices. Notwithstanding any provision in the Employment
Agreement to the contrary, all notices and other communications under or in
connection with this Amendment shall be in writing and shall be deemed given (a)
if delivered personally (including by overnight express or messenger), upon
delivery, (b) if delivered by registered or certified mail (return receipt
requested), upon the earlier of actual delivery or three (3) days after being
mailed, or (c) if given by facsimile, upon sender's confirmation of transmission
by facsimile, in each case to the parties at the following addresses or to such
other address or facsimile number as shall be specified in writing by the
intended recipient of such notice:
REST OF THIS PAGE INTENTIONALLY LEFT BLANK
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If to Company: The Majestic Star Casino, LLC
c/o Fitzgeralds Casino Hotel
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: President and CEO
Facsimile: (000) 000-0000
If to Executive: XXX X. XXXXXXX
0000 Xxx Xxxxxxx Xx.
Xxx Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
IN WITNESS WHEREOF, the parties
hereto have executed this
Amendment or caused this
Amendment to be executed on its
behalf by a representative duly
authorized, as of the date first
above written.
COMPANY:
THE MAJESTIC STAR CASINO, LLC
By: /S/ Xxx X. Xxxxxx
---------------------
Name: Xxx X. Xxxxxx
Title: President and CEO
EXECUTIVE
By: /S/ Xxx Xxxxx Xxxxxxx
---------------------
Name: Xxx Xxxxx Xxxxxxx
Title: Vice President and CFO
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