EMPLOYMENT AGREEMENT
EXHIBIT 10.2
This Employment Agreement (this
"Agreement") is entered into as of June 11 ,
2007,
by and between Xxxxxx Nevada Gaming, LLC ("Employer" or the “Company”) and
Xxxxxxx Xxxxxx ("Executive").
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1.
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Employment. Employer
hereby employs Executive, and Executive hereby accepts employment by the
Employer, as the Vice President and General Manager of Fitz Casino and
Hotel – Las Vegas and agrees to perform such executive, managerial and
administrative duties, commensurate with Executive's position, as Employer
may specify from time to time, during the Specified Term as defined in
paragraph 2.
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2.
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Effective Date;
Specified Term. This Agreement shall be effective as of
May 1, 2007 (the “Effective Date”). Subject to earlier
termination as provided herein, the term of the Executive’s employment
hereunder shall terminate twenty-four (24) months after the Effective Date
(the “Specified Term”). If either party to this Agreement
chooses not to renew the terms and conditions set forth herein by
exercising their rights under this paragraph 2, then Executive’s
employment with Employer may continue on an at-will basis and no
paragraph, section, duty or obligation appearing in this Agreement shall
be binding on the parties except paragraphs 6, 7, 8, 9, 14, 15, 16, 17,
18, 19, 20, and 22. Notwithstanding the foregoing, the parties
to this Agreement are free to agree in writing to extend the Specified
Term or other provisions of this
Agreement.
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3.
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Compensation.
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a.
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Base
Salary. During the
Specified Term, in consideration of the performance by Executive of
Executive's obligations hereunder to Employer, Employer shall pay
Executive an annual base salary (the "Base Salary") of Two Hundred
Seventy Thousand Dollars ($270,000.00). The Base Salary shall be payable
in accordance with the payroll practices of Employer as in effect from
time to time for Employer's senior executives. The Base Salary
shall be reviewed annually, exclusively by Employer, and any increase
thereto shall be in Employer’s sole
discretion.
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b.
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Bonus
Compensation. Executive shall be
entitled to participate in Employer’s discretionary bonus or incentive
plan as formulated from time to time by Employer’s Board of Directors in
its sole discretion, which shall be equal to a target rate of thirty
percent (30%) of the actual Base Salary that was paid to Executive during
the bonus plan year and based on the current bonus program in effect at
that time.
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c.
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Executive Benefit
Programs. During the Specified Term, Executive shall be
entitled to participate in all of Employer's benefit plans (the "Plans")
as are generally made available from time to time to Employer's senior
executives, subject to the terms and conditions of such plans, and subject
to Employer's right
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to amend,
terminate or take other similar actions with respect to such
plans. To the extent such Plans include life insurance, the Company
agrees to provide Executive life insurance on terms and conditions no less
favorable than similarly situated senior executives. The Executive
shall receive a maximum reimbursement of Five Thousand Dollars ($5,000.00) per
calendar year for un- reimbursed medically necessary expenses incurred in the
same calendar year and submitted in accordance with Company Policy.
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d.
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Business Expense
Reimbursements. Employer will pay or reimburse Executive
for all reasonable out-of-pocket expenses, including travel expenses,
Executive incurs during the Specified Term in the course of performing
Executive's duties under this Agreement upon timely submission of
appropriate documentation to Employer, as prescribed from time to time by
Employer.
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e.
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Vacation. At
the Effective Date, Executive shall be entitled to four (4) work weeks
(the equivalent of twenty (20) days) paid vacation to be taken at times
mutually acceptable to the Employer and Executive; provided, however, that
Executive shall not be entitled to compensation for any vacation accrued
but not used in any anniversary year except upon termination of Executives
employment by Executive With Cause or termination by the Company Without
Cause. Unused vacation days cannot be carried forward or banked
for future years absent express written consent by a duly authorized
representative of the employer.
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4.
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Extent of
Services. Executive agrees
that the duties and services to be performed by Executive shall be
performed exclusively for Employer. Executive further agrees to
perform such duties in an efficient, trustworthy, lawful, and businesslike
manner. Executive agrees not to render to others any service of
any kind whether or not for compensation, or to engage in any other
business activity whether or not for compensation, that is similar to
or conflicts with the performance of Executive's duties under this
Agreement, without the prior written approval of the Board of
Directors. Executive agrees to sign an acknowledgement form,
which states that the Company is Executive’s primary
Employer. Additionally, any services performed by Executive
that are outside the realm of his duties and responsibilities, as the
Employer’s Vice President and General Manager of Fitz Casino and Hotel –
Las Vegas, will not be performed on Company time or during Company
business hours; and such outside services will not be rendered by
utilizing Company property.
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5.
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Policies and
Procedures. In addition to the terms herein, Executive
agrees to be bound by Employer's policies and procedures including drug
testing and background checks, as they may be established or amended by
Employer in its sole discretion from time to time. In the event
the terms in this Agreement conflict with Employer's policies and
procedures, the terms herein shall take
precedence.
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6.
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Licensing
Requirements. Executive acknowledges that Employer is
engaged in a business that is or may be subject to and exists because of
privileged licenses issued by governmental authorities in Nevada and other
jurisdictions in which Employer and its parents, subsidiaries, affiliates
and joint ventures (collectively “Employer Group”) is engaged in or has
applied to engage in or, during the Specified Term, may apply to engage in
business. If requested to do so by Employer or Employer Group,
Executive shall apply for and obtain any license, qualification, clearance
or the like that shall be requested or required of Executive by any
regulatory authority having jurisdiction over Employer or Employer
Group. Additionally, Executive shall timely prepare and submit
to Employer all background information forms and other documents required
pursuant to The Majestic Star Casino, LLC, Gaming Compliance
Program. Any and all costs associated with training and license
qualifications, clearances or the like shall be paid by the
Employer.
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7.
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Failure to Satisfy
Licensing Requirement. If Executive fails to satisfy any
licensing requirement referred to in paragraph 6 above, or if any
governmental authority directs the Employer to terminate any relationship
it may have with Executive, or if Employer shall determine, in Employer's
sole and exclusive judgment, that Executive was, is or might be involved
in, or is about to be involved in, any activity, relationship(s) or
circumstance that could or does jeopardize the business of Employer or
Employer's Group, their reputation or such licenses, or if any such
license is threatened to be, or is, denied, curtailed, suspended or
revoked, this Agreement may be terminated by Employer and the parties'
obligations and responsibilities shall be determined by the provisions of
paragraph 11(a).
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8.
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Restrictive
Covenants.
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a.
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Competition. Executive
acknowledges that, in the course of Executive's responsibilities
hereunder, Executive will form relationships and become acquainted with
certain confidential and proprietary information as further described
herein. Executive further acknowledges that such relationships
and information are and will remain valuable to the Employer and Employer
Group and that the restrictions on future employment as set forth herein
are reasonably necessary in order for Employer and Employer Group to
remain competitive in the gaming industry. Except as otherwise
provided in paragraphs, 11 and 12, Executive agrees that during the period
of his employment with the Company and for the twelve (12) month period
following termination of his employment with the Company, for whatever
reason, he will not become a stockholder, director, officer, employee or
agent of or consultant to any corporation, partnership or other
entity or engage in any business as a sole proprietor in or act as a
consultant to any such entity or otherwise engage, directly or indirectly,
in any enterprise, in each case which competes with or has a vendor
relationship with any business or activity engaged in, or known by
Executive to be contemplated to be engaged in, by the Company or the
Employer Group within downtown Las Vegas, Nevada, which is bounded on the
north by Bonanza, south by Charleston Blvd, on the east by Las Vegas
blvd., and on the west by Main Street, or within 50 mile radius
of the Indiana jurisdiction in the Employer Group is engaged in gaming or
proposes to engage in Gaming; provided, however, that competition shall
not include the ownership (solely as an investor and without any other
participation in or contact with the management of the business) of less
than one percent of the outstanding shares of stock of any corporation
engaged in any such business, which shares are regularly traded on a
national securities exchange or in an over-the-counter
market. The Company, in its sole discretion, may waive one or
more of the restrictions set forth in this subparagraph; however, any such
waiver must be in writing executed by an authorized Company
representative, and shall be effective only to the extent it is set forth
in writing.
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b.
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Non-solicitation-Customers: During
and after Executive’s employment with Employer, the Executive covenants
not to:
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i.
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Make
known to any third party or use other than in the performance of his
duties the names and addresses of any of the customers of Employer or any
member of Employer Group, or any other information or data pertaining to
those customers;
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ii.
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Call
on, solicit, induce to leave and/or take away, or attempt to call on,
solicit, induce to leave and/or take away, any of the customers of
Employer or any member of the Employer Group, either for Executive's own
account or for any third
party; and
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iii.
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Call
on, solicit and/or take away, any potential or prospective customer of
Employer or any member of the Employer Group, on whom the Executive called
or with whom Executive became acquainted during employment (either before
or during the Specified Term), either for Executive's own account or for
any third party; and
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c.
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Non-Solicitation- Employees and
Independent Contractors. For the twelve (12) month
period immediately following cessation of Executive’s employment with
Employer for any reason whatsoever, Executive covenants not to approach or
solicit any employee or independent contractor of Employer or any member
of the Employer Group with a view towards enticing such person to leave
the employ or service of Employer or any member of the Employer Group, or
hire or contract with any employee or independent contractor of Employer
or any member of the Employer Group, without the prior written consent of
the Employer, such consent to be within Employer's sole and absolute
discretion.
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d.
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Confidentiality. Executive
covenants and agrees that Executive shall not at any time during the
Specified Term or thereafter, without Employer's prior written consent,
such consent to be within Employer's sole and absolute discretion,
disclose or make known to any person or entity outside of the Employer
Group any Trade Secret (as defined below), or proprietary or other
confidential information, in any form, concerning Employer or any member
of the Employer Group, including without limitation, Employer's
customers, its casino, hotel, and marketing practices and procedures,
management and employment practices, procedures and policies, or any other
information regarding Employer or any member of the Employer Group, which
is not already and generally known to the public through no wrongful act
of Executive or any other party. Executive covenants and agrees
that Executive shall not at any time during the Specified Term or
thereafter, without the Employer's prior written consent, utilize any such
Trade Secrets, proprietary or confidential information in any way other
than in connection with his employment hereunder. For purposes
of this Agreement, Trade Secrets is defined as data or information,
including a formula, pattern, compilation, program, device, method,
know-how, technique or process, that derives any economic value, present
or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who may or could obtain
any economic value from its disclosure or
use.
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e.
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Third Party
Information. Executive acknowledges that Employer and
other members of the Employer Group have received and in the future will
receive from third parties their confidential or proprietary information
subject to a duty to maintain the confidentiality of such information and
to use it only for certain limited purposes. Executive will
hold all such confidential or proprietary information in the strictest
confidence and will not disclose it to any person or entity or to use it
except as necessary in carrying out Executive's duties hereunder
consistent with Employer's (or such other member of the Employer Group's)
agreement with such third party.
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f.
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Employer's
Property. Executive hereby confirms that Trade Secrets,
proprietary or confidential information and all information concerning
Employer or Employer Group’s customers, goods, services or facilities
owned, operated or managed by Employer constitute Employer's exclusive
property (regardless of whether Executive possessed or claims to have
possessed such information prior to the date hereof). Executive
agrees that upon termination of employment, Executive shall promptly
return to the Employer all documents, papers, notes, notebooks,
memoranda, computer disks, and any other similar repositories of
information (regardless of whether Executive possessed such information
prior to the date hereof) containing or relating in any way to the Trade
Secrets or proprietary or confidential information of each member of the
Employer Group, including but not limited to, the documents referred to in
paragraph 9(c). Such repositories of information also include
but are not limited to any so-called personal files or other personal data
compilations in any form, which in any manner contain any Trade Secrets or
proprietary or confidential information of Employer or any member of the
Employer Group.
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g.
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Notice to
Employer. Executive agrees to notify Employer
immediately of any employers for whom Executive works or provides services
(whether or not for remuneration to Executive or a third party) during the
Specified Term or within the Restrictive
Period.
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9.
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Representations. Executive hereby
represents, warrants and agrees with Employer
that:
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a.
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The
covenants and agreements contained in paragraphs 4 and 8 above are
reasonable, appropriate and suitable in their geographic scope, duration
and content; the Employer's agreement to employ the Executive and a
portion of the compensation and consideration to be paid to Executive
hereunder is separate and partial consideration for such covenants and
agreements; the Executive shall not, directly or indirectly, raise any
issue of the reasonableness, appropriateness and suitability of the
geographic scope, duration or content of such covenants and agreements in
any proceeding to enforce such covenants and agreements; and such covenants
and agreements shall survive the termination of this Agreement, in
accordance with their terms;
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b.
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The
enforcement of any remedy under this Agreement will not prevent Executive
from earning a livelihood, because Executive's past work history and
abilities are such that Executive can reasonably expect to find work in
other areas and lines of business;
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c.
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The
covenants and agreements stated in paragraphs 4, 6, 7 and 8 above are
essential for the Employer's reasonable
protection;
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d.
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Employer
has reasonably relied on these covenants and agreements by Executive;
and
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e.
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Executive
has the full right to enter into this Agreement and by entering into and
performance of this Agreement will not violate or conflict with any
arrangements or agreements Executive may have or agreed to have with any
other person or entity.
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f.
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Executive
acknowledges and warrants to Employer the receipt and sufficiency of
separate consideration for the assignment by Employer of Employer's rights
and Executive's obligation under paragraph
8.
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Notwithstanding
paragraph 19, Executive agrees that in the event of Executive's breach or
threatened breach of any covenants and agreements set forth in paragraphs 4 and
8 above, Employer may seek to enforce such covenants and agreements in court
through any equitable remedy, including specific performance or injunction,
without waiving any claim for damages. In any such event, Executive
waives any claim that the Employer has an adequate remedy at law or for the
posting of a bond.
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10.
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Termination for
Death. Executive's employment hereunder shall terminate
upon Executive's death. In the event of Executive's death,
Executive (or Executive's estate) shall have no right to
receive any compensation or benefit hereunder or otherwise from Employer
or any member of the Employer Group on and after the effective date of
termination of employment other than: (1) unpaid Base Salary earned to the
date of termination of employment (which shall be paid on Employer's next
scheduled payroll date); (2) any earned but unpaid Bonus Compensation
under paragraph 3(b) prorated for the period of employment during the
applicable bonus period; (3) business expense reimbursement
pursuant to paragraph 3(d); (4) benefits provided pursuant to paragraph
3(c), subject to the terms and conditions applicable thereto; (5) the
equivalent of sixty (60) days Base Salary together with two months COBRA
payment for Executive’s then-insured dependents at the Employer’s expense;
and, (6) any earned and unpaid
vacation.
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11.
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Termination by
Employer
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a.
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For
Cause. Employer may terminate Executive's employment
hereunder for Cause (as defined below) at any time. If Employer
terminates Executive's employment for Cause, Executive shall have no right
to receive any compensation or benefits hereunder or otherwise from
Employer or any member of the Employer Group on and after the effective
date of termination of employment other than: (1) unpaid
Base Salary earned to the date of termination of employment (which shall
be paid on Employer's next scheduled payroll date); (2) business expense
reimbursement pursuant to paragraph 3(d); and (3) benefits provided
pursuant to paragraph 3(c), subject to the terms and conditions applicable
thereto. For purposes of this paragraph 11, Cause is defined as
Executive's: (i) failure to abide by Employer’s policies and
procedures; (ii) misconduct, gross negligence, insubordination, or
inattention to Employer’s business; (iii) failure to perform the duties
required of Executive up to the standards established by the Executive
Vice President/Chief Operating Officer, or other material breach of this
Agreement; or, (iv) failure or inability to satisfy the requirements
stated in paragraphs 6, 7, and
8 above. Should Employer believe that cause exists to terminate
Executive, Employer agrees to provide written notice to Executive of the
specific items identified as cause and afford Executive a period of thirty
(30) business days from receipt of the written notice to remedy the
deficiencies to Employer's satisfaction. If, at the conclusion
of the cure period, Employer determines Executive has not satisfactorily
remedied the deficiency, Employer shall notify Executive who shall be
immediately terminated. Nothing in this paragraph 11 precludes
Employer from immediately terminating Executive's employment if Executive
is convicted of felonious criminal conduct; physically aggressive conduct
toward any co-worker, patron, vendor or customer of Employer; illegal drug
use; or based upon any gaming authority's demand that Employer do
so.
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b.
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Without
Cause. Employer may terminate Executive at any time
during the Specified Term upon thirty (30) days’ written notice, or, in
the Employer’s sole discretion, the equivalent of thirty (30) days’ Base
Salary in lieu of notice. In addition to any amount due in lieu
of notice, should Employer terminate Executive’s employment without cause,
then Executive shall have no right to receive any compensation or benefits
hereunder or otherwise from Employer or any member of the Employer Group
on or after the effective date of termination of employment other
than: (1) unpaid Base Salary earned to the date of termination
of employment, plus the equivalent of an additional six (6)
months’ Base Salary or the remainder of annual Base Salary due under this
Agreement, whichever is less; (2) earned but unpaid Bonus
Compensation under Paragraph 3 (b) prorated for the period of employment
during the applicable bonus period; (3) business expense reimbursement
pursuant to paragraph 3 (d); (4) benefits provided pursuant to paragraph
3(c), subject to the terms and conditions applicable thereto; (5) Employer
paid COBRA benefits for a period of six (6) months following termination;
and, (6) any earned and unused vacation. Employer agrees to
waive the non-compete provision of paragraph 8(a) in the event Employer
terminates Executive without Cause.
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12. Termination By
Executive
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a.
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For Good
Reason. Executive may terminate Executive's employment
hereunder for Good Reason upon thirty (30) days prior written notice to
Employer. “Good Reason” shall mean: (i) failure of
Employer to pay Executive's compensation when due; (ii) material
reductions in Executive's duties and responsibilities without his consent;
or (iii) following a Change in Control. "Change in Control"
means: (a) a sale, exchange or transfer of more than 50% of the
assets or earning power of the Company on a consolidated basis or more
than 50% of its stock; (b) a merger or consolidation of the Company
(excluding merger or consolidation where the voting securities of the
Company prior to the merger or consolidation continue to represent more
than 50% of the combined voting power of the surviving entity after the
merger or consolidation); (c) any reorganization, reverse stock split or
recapitalization that would result in a change in control; (d) any
liquidation or dissolution of the Company; or, (e) any transactions or
series of related transactions having the same effect as a Change in
Control. Should Executive terminate for Good Reason, Executive
shall be entitled to: (1) unpaid Base Salary earned to the date
of termination of employment plus the equivalent of an additional six (6)
months’ Base Salary or the remainder of annual Base Salary due under this
Agreement, whichever is less; (2) earned but unpaid Bonus Compensation
under Paragraph 3 (b) prorated for the period of employment during the
applicable bonus period; (3) business expense reimbursement pursuant to
paragraph 3 (d); (4) benefits provided pursuant to paragraph 3(c), subject
to the terms and conditions applicable thereto; (5) Employer paid COBRA
benefits for a period of six (6) months following termination; and (6) any
earned and unused vacation. Employer agrees to waive the
non-compete provisions set forth in paragraph 8(a) in the event Executive
terminates his employment pursuant to paragraph 12(a)(i) and
12(a)(iii).
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Good
Reason shall not exist unless Executive first provides the Executive Vice
President/Chief Operating Officer with written notice of the facts alleged to
constitute Good Reason and until such breach, reduction or requirement remains
uncured for thirty (30) business days following the Executive Vice President/
Chief Operating Officer’s receipt of such written notice from
Executive. This thirty (30) business day cure period shall not apply
to a Change in Control.
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b.
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Without Good
Reason. Executive may terminate
his employment for any reason other than Good Reason, death or
disability, upon providing to Employer thirty (30) days’ advance written
notice of such termination. Should Executive terminate his
employment for a reason other than Good Reason, death or disability,
Executive shall have no right to receive any compensation or benefit
hereunder or otherwise from Employer or any member of the Employer Group
on and after the effective date of termination other than: (1) unpaid Base
Salary earned to the date of termination of employment (which shall be
paid on Employer's next scheduled payroll date); (2) business expense
reimbursement pursuant to paragraph 3(d); and (3) benefits provided
pursuant to paragraph 3(c), subject to the terms and conditions applicable
thereto.
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13.
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Release; Full
Satisfaction. Notwithstanding anything to the contrary,
no payments or benefits shall be provided that are in addition to the
payments or benefits that would be provided pursuant to paragraphs 11(b)
and 12(a) unless and until Executive executes and delivers a standard form
of general release of claims, and such release has become irrevocable;
provided, however, that Executive shall not be required to release any
indemnification rights or continuing rights to benefits under Employer's
benefit plans, in accordance with the terms and conditions of such
plans.
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14.
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Cooperation Following
Termination. Following termination of Executive's
employment hereunder for any reason, Executive agrees to cooperate with
Employer upon the reasonable request of the Board of Directors and to be
reasonably available to Employer with respect to matters arising out of
Executive's services. Employer shall reimburse, or at
Executive's request, advance Executive for expenses reasonably incurred in
connection with such matters.
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15.
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Interpretation; Each
Party the Drafter. Each of the parties was represented
by or had the opportunity to consult with counsel who either participated
in the formulation and documentation of, or was afforded the opportunity
to review and provide comments on, this Agreement. Accordingly, this
Agreement and the provisions contained in it shall not be construed or
interpreted for or against any party to this agreement because that party
drafted or caused that party's legal representative to draft any of its
provisions.
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16.
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Severability. If
any provision hereof is unenforceable, illegal or invalid for any reason
whatsoever, such fact shall not affect the remaining provisions hereof,
except in the event a law or court decision, whether on application for
declaration, or preliminary injunction or upon final judgment, declares
one or more of the provisions of this Agreement that impose restrictions
on Executive unenforceable or invalid because of the geographic scope or
time duration of such restriction. In such event, Employer
shall have the option:
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(a) To
deem the invalidated restrictions retroactively modified to provide for the
maximum geographic scope and time duration that would make such provisions
enforceable and valid; or
(b) To
terminate this Agreement pursuant to paragraph 11(a) or 11(b), whichever is
applicable.
Exercise
of any of these options shall not affect Employer's right to seek damages or
such additional relief as may be allowed by law in respect to any breach by
Executive of the enforceable provisions of this Agreement.
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17.
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Notice. For
purposes 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: (i) when personally delivered; (ii) when delivered by
facsimile upon receipt of confirmation that the transmission was
successful; (iii) the business day following the day when deposited with a
reputable and established overnight express courier (charges prepaid); or
(iv) five (5) days following mailing by certified or registered mail,
postage prepaid and return receipt requested. Unless another
address is specified, notices shall be sent to the addresses indicated
below:
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To
Employer: With
a copy to its:
The
Majestic Star Casino,
LLC Xxxxxx
Neavda Gaming
000 Xxxxxxx
Xxxxxx c/x
Xxxxxx Development Inc.
Xxx
Xxxxx, XX
00000 163
Madison Suite 2000
Attn:
Xxxx
Xxxxxx Xxxxxxx,
XX 00000
Executive
Vice President/Chief Operating
Officer Attn:
Xxxxxxxx Xxxxxxx
Facsimile
#: (000) 000-0000
AND
Corporate
V.P. of Human Resources
The
Majestic Star Casino, LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
Facsimile
#: 000-000-0000
11
To
Executive:
Xxxxxxx
Xxxxxx
0000 Xxx
Xxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
or to
such other address as either party shall have furnished to the other in writing
in accordance herewith.
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18.
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Tax
Withholding. Notwithstanding any other provision of this
Agreement, Employer may withhold from any amounts payable under this
Agreement, or any other benefits received pursuant hereto, such federal,
state, local and other taxes as shall be required
to
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be
withheld under any applicable law or regulation.
19. Dispute
Resolution.
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a.
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Any
dispute, claim or controversy arising from or related in any way to this
Agreement or the interpretation, application, breach, termination or
validity thereof, including any claim of inducement of this Agreement by
fraud, or arising from or related in any way to Executive's employment
with Employer will be submitted for final resolution by private
arbitration before a single arbitrator and in accordance with the National
Rules for the Resolution of Employment Disputes and practices then in
effect of, the American Arbitration Association, or any successors thereto
("AAA"), except where those rules conflict with these provisions, in which
case these provisions control; provided, however, that Employer shall have
the right to seek in court equitable relief, including a temporary
restraining order, preliminary or permanent injunction or an injunction in
aid of arbitration, to enforce its rights set forth in paragraph
8. The arbitration will be held in Las Vegas,
Nevada.
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b.
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Giving
recognition to the understanding of the parties hereto that they
contemplate reasonable discovery, including document demands and
depositions, the arbitrator shall provide for discovery in accordance with
the Nevada Rules of Civil Procedure as reasonably applicable to this
private arbitration.
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c.
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To
the extent possible, the arbitration hearings and award will be maintained
in confidence, except as may be required by law or for the purpose of
enforcement of an arbitration
award.
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d.
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Each
party shall bear its own costs and expenses incurred in connection with
arbitration proceedings pursuant to this Agreement to
arbitrate. To the extent permitted by law, the costs and
expenses of the arbitrator(s) and related expenses shall be shared equally
between Employer, on one hand, and Executive on the other
hand.
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e.
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Each
party hereto waives, to the fullest extent permitted by law, any claim to
punitive or exemplary or liquidated or multiplied damages from the
other.
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20.
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No Waiver of Breach or
Remedies. No failure or delay on the part of Employer or
Executive in exercising any right, power or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
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21.
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Amendment or
Modification. No amendment, modification, termination or
waiver of any provision of this Agreement shall be effective unless the
same shall be in writing and signed by the Executive Vice President/Chief
Operating Officer and Executive, nor consent to any departure by the
Executive from any of the terms of this Agreement shall be effective
unless the same is signed by the Executive Vice President/Chief Operating
Officer. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which
given.
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22.
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Governing Law;
Venue. The laws of the State of Nevada shall govern the
validity, construction, and interpretation of this Agreement, without
regard to conflict of law principles. Each party irrevocably
submits to the exclusive jurisdiction of the courts of the State of Nevada
in any action, suit or proceeding of any kind arising out of or relating
to this Agreement (including arbitration) or any matters contemplated
hereby, and agrees that any such action, suit or proceeding shall be
brought only in such court.
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23.
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Headings. The
headings in this Agreement have been included solely for convenience of
reference and shall not be considered in the interpretation or
construction of this Agreement.
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24.
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Assignment. This
Agreement is personal to Executive and may not be assigned by
Executive.
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25.
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Successors and
Assigns. This Agreement may be assigned by Employer to
its successors and shall be binding upon the successors and assigns of
Employer.
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26.
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Prior
Agreements. At the Effective Date, this Agreement shall
supersede and replace any and all other prior discussions and negotiations
as well as any and all agreements and arrangements that may have been
entered into by and between Employer or any predecessor thereof, on the
one hand, and Executive, on the other hand, prior to the Effective Date
relating to the subject matter hereof. Executive acknowledges
that all rights under such prior agreements and arrangements shall be
extinguished.
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12
IN WITNESS WHEREOF, Employer
and Executive have entered into this Agreement as of the date first written
above.
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XXXXXXX
XXXXXX
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/s/
Xxxxxxx X. Xxxxxx
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Signature
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Date:
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7/25/07
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THE
MAJESTIC STAR CASINO, LLC
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By:
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/s/
Xxxx Xxxxxx
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XXXX
XXXXXX
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Its:
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Executive
Vice President and Chief Operating Officer
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Date:
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6/11/07
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13
