AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
____________________________
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
_____________________________
THIS
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (“Agreement”) is made and entered
into on November 8, 2007, with effect from the 4TH day of July
2007,
by and between XXXX INTERNATIONAL MARKETING, LTD.
(“Employer”) and IAN XXXXXXX XXXXXXXX
(“Employee”).
RECITALS
A.
Employee and Employee are party to that certain Employment Agreement (the
“Existing Agreement”) dated as of September 6, 2006 pursuant to which Employee
has been employed as Director of Hotel Operations, Wynn Worldwide and Employer
and Employee desire to amend the Existing Agreement to reflect Employee’s
promotion to President of Xxxx Macau as of July 4, 2007;
B. Employee
has represented and warranted to Employer that Employee possesses sufficient
qualifications and expertise in order to fulfill the terms of the employment
stated in this Agreement; and,
C.
Employer is willing to employ Employee, and Employee is desirous of accepting
employment from Employer under the terms and pursuant to the conditions set
forth herein;
NOW,
THEREFORE, for and in consideration of the foregoing recitals, and
in consideration of the mutual covenants, agreements, understandings,
undertakings, representations, warranties and promises hereinafter set forth,
and intending to be legally bound thereby, Employer and Employee do hereby
covenant and agree as follows:
1. DEFINITIONS.
As used in this Agreement, the words and terms hereinafter defined have the
respective meanings ascribed to them herein, unless a different meaning clearly
appears from the context:
(a) “Affiliate”
- means with respect to a specified Person, any other Person who or which is
(i)
directly or indirectly controlling, controlled by or under common control with
the specified Person, or (ii) any member, director, officer or manager of the
specified Person. For purposes of this definition, only, “control”,
“controlling”, and “controlled” mean the right to exercise, directly or
indirectly, more than fifty percent (50%) of the voting power of the
stockholders, members or owners and, with respect to any individual,
partnership, trust or other entity or association, the possession, directly
or
indirectly, of the power to direct or cause the direction of the management
or
policies of the controlled entity.
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(b) “Anniversary”
- means each anniversary date of the Effective Date during the Term of this
Agreement (as defined in paragraph 5 hereof).
(c) “Benefits
Date" – means January 1, 2007.
(d) “Cause”
- means
(i) the
willful destruction by Employee of the property of Employer or an Affiliate
of
Employer having a material value to Employer or such Affiliate;
(ii) fraud,
embezzlement, theft, or comparable dishonest activity committed by Employee
(excluding acts involving a de minimis dollar value and not related to
Employer or an Affiliate of Employer);
(iii) Employee’s
conviction of or entering a plea of guilty or nolo contendere to any
crime constituting a felony or any misdemeanor involving fraud, dishonesty
or
moral turpitude (excluding acts involving a de minimis dollar value and
not related to Employer or an Affiliate of Employer);
(iv) Employee’s
breach, neglect, refusal, or failure to materially discharge his duties (other
than due to physical or mental illness) commensurate with his title and
function, or Employee’s failure to comply with the lawful directions of
Employer’s Board of Directors or the board of directors of Wynn Resorts, Limited
(“WRL”), that is not cured within fifteen (15) days after Employee has received
written notice thereof from either board;
(v) a
willful and knowing material misrepresentation to Employer’s Board of Directors
or and WRL’s board of directors;
(vi) a
willful violation of a material policy of Employer, which does or could result
in material harm to i) Employer or its Affiliates, or ii) Employer’s or its
Affiliates’ reputation; or
(vii) Employee’s
material violation of a statutory or common law duty of loyalty or fiduciary
duty to Employer or an Affiliate of Employer,
provided,
however, that Employee’s disability due to illness
or accident or any other mental or physical incapacity shall not constitute
“Cause” as defined herein.
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(e) “Change
of Control” - means the occurrence, after the Effective Date, of
any of the following events:
(i) any
"Person" or "Group" (as such terms are defined in Section 13(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") and the
rules and regulations promulgated thereunder), excluding any Excluded
Stockholder, is or becomes the "Beneficial Owner" (within the meaning of
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of WRL, or of any entity resulting from a merger or consolidation
involving WRL, representing more than fifty percent (50%) of the combined voting
power of the then outstanding securities of WRL or such entity;
(ii) the
individuals who, as of the Effective Date, are members of the WRL board of
directors (the
"Existing Directors") cease, for
any reason, to constitute more than fifty percent (50%) of the number of
authorized directors of WRL as determined in the manner prescribed in WRL’s
Articles of Incorporation and Bylaws; provided,
however, that if the election, or nomination
for election,
by WRL’s stockholders of any new director was approved by a vote of at least
fifty percent (50%) of the Existing Directors, such new director shall be
considered an Existing Director; provided further,
however, that no individual shall be
considered an Existing
Director if such individual initially assumed office as a result of either
an
actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies by or on behalf of anyone other than the WRL board of
directors (a "ProxyContest"), including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(iii) the
consummation of (x) a merger, consolidation or reorganization to which
Employer is a party, whether or not Employer is the Person surviving or
resulting therefrom, or (y) a sale, assignment, lease, conveyance or other
disposition of all or substantially all of the assets of Employer, in one
transaction or a series of related transactions, to any Person other than
Employer, where any such transaction or series of related transactions as
is
referred to in clause (x) or clause (y) above in this
subparagraph (iii) (singly or collectively, a
"Transaction") does not otherwise result in a "Change of
Control" pursuant
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to
subparagraph (i) of this definition of "Change of Control";
provided, however, that no such
Transaction shall constitute a "Change of Control" under this
subparagraph (iii) if the Persons who were the stockholders of Employer
immediately before the consummation of such Transaction are the Beneficial
Owners, immediately following the consummation of such Transaction, of fifty
percent (50%) or more of the combined voting power of the then outstanding
voting securities of the Person surviving or resulting from any merger,
consolidation or reorganization referred to in clause (x) above in this
subparagraph (iii) or the Person to whom the assets of Employer are sold,
assigned, leased, conveyed or disposed of in any transaction or series of
related transactions referred in clause (y) above in this
subparagraph (iii), in substantially the same proportions in which such
Beneficial Owners held voting stock in Employer immediately before such
Transaction.
For
purposes of the foregoing definition of “Change of Control,” the term “Excluded
Stockholder” means Xxxxxxx X. Xxxx, the spouse, siblings, children,
grandchildren or great grandchildren of Xxxxxxx X. Xxxx, any trust primarily
for
the benefit of the foregoing persons, or any Affiliate of any of the foregoing
persons.
(f) “Complete
Disability” - means the inability of Employee, due to illness or
accident or other mental or physical incapacity, to perform his obligations
under this Agreement for a period as defined by Employer’s disability plan or
plans.
(g) “Confidential
Information” - means any information that is possessed or developed
by or for Employer or its Affiliates and which relates to the Employer’s or its
Affiliates’ existing or potential business or technology, which is not generally
known to the public or to persons engaged in business similar to that conducted
or contemplated by Employer or its Affiliates, or which Employer or its
Affiliates seeks to protect from disclosure to its existing or potential
competitors or others, and includes without limitation know how, business and
technical plans, strategies, existing and proposed bids, costs, technical
developments, purchasing history, existing and proposed research projects,
copyrights, inventions, patents, intellectual property, data, process, process
parameters, methods, practices, products, product design information, research
and development data, financial records, operational manuals, pricing and price
lists, computer programs and information stored or developed for use in or
with
computers, customer information, customer lists, supplier lists, marketing
plans, financial information, financial or business projections, and all other
compilations of information which relate to the business of Employer or its
Affiliates, and any other proprietary
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material
of Employer or its Affiliates, which have not been released to the general
public. Confidential Information also includes information received
by Employer or any of its Affiliates from others that the Employer or its
Affiliates has an obligation to treat as confidential.
(h) “Effective
Date” – means July 4, 2007.
(i) “Good
Reason” - means the occurrence, of any of the following (except
with Employee’s written consent or resulting from an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by Employer
or
its Affiliate promptly after receipt of notice thereof from
Employee):
(i)
Employer or an Affiliate of Employer reduces Employee’s Base
Salary (as defined in Subparagraph 7(a) below);
(ii)
Employer discontinues its bonus plan in which Employee
participates as in effect without immediately replacing such bonus plan with
a
plan that is the substantial economic equivalent of such bonus plan, or amends
such bonus plan so as to materially reduce Employee’s potential bonus at any
given level of economic performance of Employer or its successor
entity;
(iii) Employer
materially reduces the aggregate benefits and perquisites to Employee from
those
being provided;
(iv)
Employer or any of its Affiliates reduces Employee’s
responsibilities or directs Employee to report to a person of lower rank
or
responsibilities than the person to whom Employee reported; or
(v)
the successor to Employer fails or refuses expressly to
assume in writing the obligations of Employer under this
Agreement.
For
purposes of this Agreement, a determination by Employee that Employee has “Good
Reason” shall be final and binding on Employer and Employee absent a showing of
bad faith on Employee’s part.
(j) “Separation
Payment” – means a lump sum equal to Employee’s
compensation as set forth in Subparagraphs 7(a) of this Agreement for the
remainder of the Term, but not less than one (1) year of Base Salary, and a
pro-rated amount of any bonuses that might otherwise
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have
been paid to Employee under Subparagraph 7(b) for any bonus periods that
would have concluded during the remainder of the Term.
(k) “Trade
Secrets” - means unpublished inventions or works of authorship, as
well as all information possessed by or developed by or for Employer or its
Affiliate, including without limitation any formula, pattern, compilation,
program device, method, technique, product, system, process, design, prototype,
procedure, computer programming or code that (i) derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by the public or other persons who can
obtain economic value from its disclosure or use; and (ii) is the subject of
efforts that are reasonable to maintain its secrecy.
(l) “Work
of Authorship” - means any computer program, code or system as well
as any literary, pictorial, sculptural, graphic or audio visual work, whether
published or unpublished, and whether copyrightable or not, in whatever form
and
jointly with others that (i) relates to any of Employer’s or its Affiliate’s
existing or potential products, practices, processes, formulations,
manufacturing, engineering, research, equipment, applications or other business
or technical activities or investigations; or (ii) relates to ideas,
work or investigations conceived or carried on by Employer or its Affiliate
or
by Employee in connection with or because of performing services for Employer
or
its Affiliate.
2. BASIC
EMPLOYMENT AGREEMENT.
Subject to the terms and pursuant to the conditions hereinafter set forth,
Employer hereby employs Employee during the Term hereinafter specified to serve
in a managerial or executive capacity, under a title and with such duties not
inconsistent with those set forth in paragraph 3 of this Agreement, as the
same may be modified and/or assigned to Employee by Employer from time to time;
provided, however, that no change in Employee’s duties shall be permitted if it
would result in a material reduction in the level of Employee’s duties as in
effect prior to the change, it being understood that, prior to a Change in
Control, no change in Employee’s titles or reporting responsibilities shall in
itself be a basis for finding a material reduction in the level of
duties.
3. DUTIES
OF EMPLOYEE. Employee
shall perform such duties assigned to Employee by Employer as are generally
associated with the duties of President of Xxxx Macau or such similar duties
as
may be assigned to Employee by Employer as Employer may
determine. The foregoing notwithstanding, Employee shall devote such
time to Employer’s Affiliates as may be required by Employer, provided such
duties are not inconsistent with Employee’s primary duties to Employer
hereunder.
4. ACCEPTANCE
OF EMPLOYMENT/TERMINATION OF 2006 EMPLOYMENT
AGREEMENT. Employee
hereby unconditionally accepts the employment set forth hereunder, under the
terms and pursuant to the conditions set forth
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in
this
Agreement. Employee hereby covenants and agrees that, during the Term
of this Agreement, Employee will devote the whole of Employee’s normal and
customary working time and best efforts solely to the performance of Employee’s
duties under this Agreement and that, except upon Employer’s prior express
written authorization to that effect, Employee shall not perform any services
for any casino, hotel/casino or other similar gaming or gambling operation
not
owned by Employer or any of Employer’s Affiliates.
As
of
the Effective Date, this Agreement supersedes and replaces any and all prior
employment agreements (including, but not limited to, the Existing Agreement),
change in control agreements and severance plans or agreements, whether written
or oral, by and between Employee, on the one side, and Employer or any of
Employer’s Affiliates, on the other side, or under which Employee is a
participant. For the avoidance of doubt, that certain Restricted
Stock Agreement dated March 6, 2007 shall remain in full force and
effect. From and after the Effective Date, Employee shall be employed
by Employer under the terms and pursuant to the conditions set forth in this
Agreement.
5. TERM.
Unless sooner terminated as provided in this Agreement, the term of this
Agreement (the “Term”) shall consist of five (5) years
commencing as of the Effective Date of this Agreement and terminating on the
fifth Anniversary Date of the Effective Date.
Following
the Term, unless the parties
enter into a new written contract of employment, (a) any continued employment
of
Employee shall be at-will, (b) any or all of the other terms and conditions
of
Employee’s employment may be changed by Employer at its discretion, with or
without notice, and (c) the employment relationship may be terminated at any
time by either party, with or without cause or notice.
6. SPECIAL
TERMINATION
PROVISIONS. Notwithstanding
the provisions of paragraph 5 of this Agreement, this Agreement shall
terminate upon the occurrence of any of the following events:
(a) the
death of Employee;
(b) the
giving of written notice from Employer to Employee of the termination of
this
Agreement upon the Complete Disability of Employee;
(c) the
giving of written notice by Employer to Employee of the termination of this
Agreement upon the discharge of Employee for Cause;
(d) the
giving of written notice by Employer to Employee of the termination of this
Agreement without Cause, provided,
however,
that, within ten (10) calendar days after such notice, Employer must tender
the
Separation Payment to Employee;
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(e) the
giving of written notice by Employee to Employer upon a material breach of
this
Agreement by Employer, which material breach remains uncured for a period
of
thirty (30) days after the giving of such
notice, provided,
however,
that, within ten (10) days after the expiration of such cure period without
the
cure having been effected, Employer must tender the Separation Payment to
Employee;
(f) at
Employee’s sole election in writing as provided in paragraph 16 of this
Agreement, after both a Change of Control and as a result of Good Reason,
provided,
however,
that, within ten (10) calendar days after Employer’s receipt of Employee’s
written election, Employer must tender the Separation Payment to Employee;
or
(g) the
giving of written notice by Employer to Employee of the termination of this
Agreement following a termination of Employee’s License (as defined in
Subparagraph 8(b) of this Agreement).
In
the
event of a termination of this Agreement pursuant to the provisions of
Subparagraph 6(a), (b), (c) or (g), Employer shall not be required to make
any payments to Employee other than payment of Base Salary and vacation pay
accrued but unpaid through the termination date. In the event of a
termination of this Agreement pursuant to the provisions of Subparagraph (d),
(e) or (f), Employee will also be entitled to receive health benefits coverage
for Employee and Employee’s dependents under the same plan(s) or arrangement(s)
under which Employee was covered immediately before Employee’s termination, or
plan(s) established or arrangement(s) provided by Employer or any of its
Affiliates thereafter. Such health benefits coverage shall be paid
for by Employer to the same extent as if Employee were still employed by
Employer, and Employee will be required to make such payments as Employee would
be required to make if Employee were still employed by Employer. The
health benefits provided under this Paragraph 6 shall continue until the
earlier of (x) the expiration of the period for which the Separation
Payment is paid, (y) the date Employee becomes covered under any other
group health plan not maintained by Employer or any of its Affiliates;
provided, however, that if such other group
health plan excludes any pre-existing condition that Employee or Employee’s
dependents may have when coverage under such group health plan would otherwise
begin, coverage under this Paragraph 6 shall continue (but not beyond the
period described in clause (x) of this sentence) with respect to such
pre-existing condition until such exclusion under such other group health plan
lapses or expires. In the event of a termination of this Agreement
pursuant to any of the provisions of this Paragraph 6, Employee shall not
be entitled to any benefits pursuant to any severance plan in effect by Employer
or any of Employer’s Affiliates.
7. COMPENSATION
TO EMPLOYEE. For and in
complete consideration of Employee's full and faithful performance of Employee’s
duties under this Agreement,
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Employer
hereby covenants and agrees to pay to Employee, and Employee hereby covenants
and agrees to accept from Employer, the following items of
compensation:
(a) BASE
SALARY. Employer hereby covenants and
agrees to pay to Employee, and Employee hereby covenants and agrees to accept
from Employer, a base salary (the “Base Salary”) at the rate of
Seven Hundred and Fifty Thousand US Dollars (US$750,000.00) per annum payable
in
such weekly, bi-weekly or semi-monthly installments as shall be convenient
to
Employer. Such Base Salary shall be exclusive of and in addition to
any other benefits which Employer, in its sole discretion, may make available
to
Employee, including, but not limited to, those benefits described in
Subparagraphs 7(b) through (f) of this Agreement.
(b) BONUS
COMPENSATION. Employee also will be
eligible to receive a bonus at such times and in such amounts as Employer,
in
its sole, exclusive and unreviewable discretion, may determine. The
parties agree that for 2007, Employee’s target bonus is up to 100% of his Base
Salary earned in 2007. For the fiscal year 2008 and
thereafter Employee shall participate in the Wynn Resorts, Limited Annual
Performance Based Incentive Plan for Executive Officers (the “162(m)
Plan”).
(c) EMPLOYEE
BENEFIT PLANS.
Employer hereby covenants and agrees that it shall include Employee, if
otherwise eligible, in any profit sharing plan, stock option plan, pension
plan,
retirement plan, disability or life insurance plan, medical and/or
hospitalization plan, and/or any and all other benefit plans which may be
placed
in effect by Employer or any of its Affiliates for the benefit of Employer’s
executives during the Term. Nothing in this Agreement shall limit Employer’s or
its Affiliates’ ability to adopt, amend or terminate any such benefit plans at
any time prior to a Change of Control.
(d) EXPENSE
REIMBURSEMENT. During the Term and
provided the same are authorized by Employer, Employer shall either pay directly
or reimburse Employee for Employee’s reasonable expenses incurred for the
benefit of Employer in accordance with Employer’s general policy regarding
expense reimbursement, as the same may be amended, modified or changed from
time
to time. Such reimbursable expenses shall include, but are not
limited to, (i) reasonable entertainment and promotional expenses,
(ii) gift and travel expenses, (iii) dues and expenses of membership
in clubs, professional societies and fraternal organizations (upon Employer’s
prior written approval), and (iv) the like. Prior to
reimbursement, Employee shall provide Employer with sufficient detailed invoices
of such expenses in accordance with the then applicable guidelines of the
Internal Revenue Service so as to entitle Employer to a deduction for such
expenses. When traveling under the terms of this Agreement, Employee
shall be entitled to first class air travel.
(e) VACATIONS
AND HOLIDAYS. Commencing as of the
Effective Date of this Agreement, Employee shall be entitled to (i) annual
paid vacation leave in accordance with Employer’s standard policy therefor, but
in no event less than three (3) weeks each year of the Term, to be taken
at such
times as selected by Employee and
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approved
by Employer, and (ii) paid holidays (or, at Employer’s option, an
equivalent number of paid days off) in accordance with Employer’s standard
policy therefor.
(f) MACAU
EXPENSES. At Employer’s request,
Employee has agreed to relocate his household to Macau, Special Administrative
Region of the People’s Republic of China (“Macau”), for such period of
time as determined by Employer. During such period that Employee
actually has his and his family’s primary place of residence in Macau, Employer
agrees to provide Employee at Employer’s sole cost and expense housing (in the
form of a family house) for Employee and his immediate family at a level
commensurate with Employee’s position. In addition, Employer agrees
to pay all reasonable costs of relocating Employee’s family from Hong Kong to
Macau, as well as relocation back to Hong Kong or Singapore if Employee’s
employment hereunder is terminated without cause during the Term in accordance
with Sections 6(d), 6(e) or 6(f) hereunder. In addition, throughout
the Term, Employee shall have the use of one luxury automobile in Macau,
at a
standard that is suitable for a person holding Employee’s
position. Further, Employee shall be entitled to three return
trips to Singapore or Ireland during each year of employment hereunder for
himself, and his immediate family (business class).
(g) Intentionally
deleted.
(h) BENEFITS
DATE. Employee's Benefits Date shall be
used for determining Employee’s other benefits.
(i)
EQUITY GRANT. Employee has
been advised that Employer is currently evaluating an equity grant program
for
senior executives. At such time as a plan is adopted, Employee shall
be included in such plan on terms acceptable to Employer in its sole
discretion.
8. LICENSING
REQUIREMENTS.
(a) Employer
and Employee hereby covenant and agree that this Agreement may be subject to
the
approval of one or more gaming regulatory authorities (the “Gaming
Authorities”) pursuant to the provisions of the applicable gaming
regulatory statutes and the regulations promulgated thereunder
(the“Gaming Laws”). Employer and Employee hereby
covenant and agree to use their best efforts, at Employer’s sole cost and
expense, to obtain any and all approvals required by the Gaming
Laws. In the event that (i) an approval of this Agreement by the
Gaming Authorities is required for Employee to carry out her duties and
responsibilities set forth in paragraph 3 of this Agreement,
(ii) Employer and Employee have used their best efforts to obtain such
approval, and (iii) this Agreement is not so approved by the Gaming
Authorities, then this Agreement shall immediately terminate and shall be null
and void.
(b) Employer
and Employee hereby covenant and agree that, in order for Employee to discharge
the duties required under this Agreement, Employee may be required to apply
for
or hold a license, registration, permit or other approval as issued by
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the
Gaming Authorities pursuant to the terms of the applicable Gaming Laws and
as
otherwise required by this Agreement (the
“License”). In the event Employee fails to apply for
and secure, or the Gaming Authorities refuse to issue or renew, or revoke or
suspend any required License, then Employee, at Employer’s sole cost and
expense, shall promptly defend such action and shall take such reasonable steps
as may be required to either remove the objections, secure the Gaming
Authorities’ approval, or reinstate the License, respectively. The
foregoing notwithstanding, if the source of the objections or the Gaming
Authorities’ refusal to renew the License or their imposition of disciplinary
action against Employee is any of the events described in Subparagraph 1(d)
of this Agreement, then Employer’s obligations under this paragraph 8 shall
not be operative and Employee shall promptly reimburse Employer upon demand
for
any expenses incurred by Employer pursuant to this
paragraph 8.
(c) Employer
and Employee hereby covenant and agree that the provisions of this
paragraph 8 shall apply in the event Employee’s duties require that
Employee also be licensed by such relevant governmental agencies other than
the
Gaming Authorities.
9. CONFIDENTIALITY.
(a) Employee
hereby warrants, covenants and agrees that Employee shall not directly or
indirectly use or disclose any Confidential Information, Trade Secrets, or
Works
of Authorship, whether in written, verbal, or model form, at any time or in
any
manner, except as required in the conduct of Employer’s business or as expressly
authorized by Employer in writing. Employee shall take all
necessary and available precautions to protect against the unauthorized
disclosure of Confidential Information, Trade Secrets, or Works of
Authorship. Employee acknowledges and agrees that such Confidential
Information, Trade Secrets, or Works of Authorship are the sole and exclusive
property of Employer or its Affiliate.
(b) Employee
shall not remove from Employer’s premises any Confidential Information, Trade
Secrets, Works of Authorship, or any other documents pertaining to Employer’s or
its Affiliate’s business, unless expressly authorized by Employer in writing.
Furthermore, Employee specifically covenants and agrees not to make any
duplicates, copies, or reconstructions of such materials and that, if any such
duplicates, copies, or reconstructions are made, they shall become the property
of Employer or its Affiliate upon their creation.
(c) Upon
termination of Employee’s employment with Employer, Employee shall turn over to
Employer the originals and all copies of any and all papers, documents and
things, including information stored for use in or with computers and software,
all files, Rolodex cards, phone books, notes, price lists, customer contracts,
bids, customer lists, notebooks, books, memoranda, drawings, or other documents:
(i) made, compiled by, or delivered to Employee concerning any customer
served by Employer or its Affiliate or any product, apparatus, or process
manufactured, used, developed or investigated by Employer; (ii) containing
any Confidential Information,
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Trade
Secret or Work of Authorship; or (iii) otherwise relating to Employee’s
performance of duties under this Agreement. Employee further
acknowledges and agrees that all such documents are the sole and exclusive
property of Employer or its Affiliate.
(d) Employee
hereby warrants, covenants and agrees that Employee shall not disclose to
Employer, or any Affiliate, officer, director, employee or agent of Employer,
any proprietary or confidential information or property, including but not
limited to any trade secret, formula, pattern, compilation, program, device,
method, technique or process, which Employee is prohibited by contract, or
otherwise, to disclose to Employer (the “Restricted
Information”). In the event, Employer requests Restricted
Information from Employee, Employee shall advise Employer that the information
requested is Restricted Information and may not be disclosed by
Employee.
(e) The
obligations of this paragraph 9 are continuing and shall survive the termination
of Employee’s employment with Employer.
10. RESTRICTIVE
COVENANT/NO SOLICITATION.
(a) Employee hereby
covenants and agrees that, during the remainder of the Term, notwithstanding
a
termination of this Agreement under paragraph 6, Employee shall not
directly or indirectly, either as a principal, agent, employee, employer,
consultant, partner, member of a limited liability company, shareholder of
a
closely held corporation, or shareholder in excess of two percent (2%) of a
publicly traded corporation, corporate officer or director, or in any other
individual or representative capacity, engage or otherwise participate in any
manner or fashion in any gaming or hotel business that is in competition in
any
manner whatsoever with the principal business activity of Employer or Employer’s
Affiliates, in or about any market in which Employer or Employer’s Affiliates
have or have publicly announced a plan for gaming or hotel
operations. Employee hereby further covenants and agrees that the
restrictive covenant contained in this paragraph 11 is reasonable as to
duration, terms and geographical area and that the same protects the legitimate
interests of Employer, imposes no undue hardship on Employee, and is not
injurious to the public.
(b) Employee hereby
further covenants and agrees that, for the period described in
Subparagraph 10(a), Employee shall not directly or indirectly, and Employee
shall not suffer others to, solicit or attempt to solicit for employment any
management level employee of Employer or Employer’s Affiliates with or on behalf
of any business that is in competition in any manner whatsoever with the
principal business activity of Employer or Employer’s Affiliates, in or about
any market in which Employer or Employer’s Affiliates have or plan gaming or
hotel operations.
(c) Employee
hereby further covenants and agrees that the restrictive covenants contained
in
this Section 10 are reasonable as to duration, terms and geographical area
and that they protect the legitimate interests of Employer, impose no undue
hardship on Employee, and are not injurious to the public. In
the event that any of
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12
the
restrictions and limitations contained in this Section 10 are deemed to exceed
the time, geographic or other limitations permitted by Nevada law, the parties
agree that a court of competent jurisdiction shall revise any offending
provisions so as to bring this Section 10 within the maximum time, geographical
or other limitations permitted by Nevada law.
11. BEST
EVIDENCE. This
Agreement shall be executed in original and “Xerox” or photostatic copies and
each copy bearing original signatures in ink shall be deemed an
original.
12. SUCCESSION. This
Agreement shall be binding upon and inure to the benefit of Employer and
Employee and their respective successors and assigns.
13. ASSIGNMENT. Employee
shall not assign this Agreement or delegate his duties hereunder without the
express written prior consent of Employer thereto. Any purported
assignment by Employee in violation of this paragraph 13 shall be null and
void
and of no force or effect. Employer shall have the right to assign
this Agreement to any of its Affiliates, provided that this agreement shall
be
reassigned to Employer upon a sale of that Affiliate or substantially all of
that Affiliate’s assets to an unaffiliated third party, provided further that,
in any event, Employer shall have the right to assign this Agreement to any
successor of Employer that is not an affiliate of Employer.
14. AMENDMENT
OR MODIFICATION. This
Agreement may not be amended, modified, changed or altered except by a writing
signed by both Employer and Employee.
15. GOVERNING
LAW. This Agreement shall be governed by and
construed in accordance with the laws of Hong Kong and Employee and Employer
submit to exclusive jurisdiction in the applicable courts.
16. NOTICES. Any
and all notices required under this Agreement shall be in writing and shall
be
either hand-delivered or mailed, certified mail, return receipt requested,
addressed to:
|
TO
EMPLOYER:
|
Wynn
International Marketing, Ltd.
|
|
|
c/o
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
|
||
|
Xxx
Xxxxx, Xxxxxx 00000
|
||
|
WITH
A COPY
|
Wynn
Resorts, Limited
|
|
|
THAT
SHALL NOT BE
|
0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
|
|
|
NOTICE
TO:
|
Xxx
Xxxxx, Xxxxxx 00000
|
|
|
Attn: Legal
Department
|
||
|
TO
EMPLOYEE:
|
Ian
Xxxxxxx Xxxxxxxx
|
|
|
32A
Residence Bel Air
|
||
|
Phase
I Tower 5
|
||
|
Bel
Air Avenue
|
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13
|
Pok
Fu Xxx Island South
|
||
All
notices hand-delivered shall be deemed delivered as of the date actually
delivered. All notices mailed shall be deemed delivered as of three
(3) business days after the date postmarked. Any changes in any of
the addresses listed herein shall be made by notice as provided in this
paragraph 16.
17. INTERPRETATION.
The preamble recitals to this Agreement are incorporated into and made a part
of
this Agreement; titles of paragraphs are for convenience only and are not to
be
considered a part of this Agreement.
18. SEVERABILITY. In
the event any one or more provisions of this Agreement is declared judicially
void or otherwise unenforceable, the remainder of this Agreement shall survive
and such provision(s) shall be deemed modified or amended so as to fulfill
the
intent of the parties hereto.
19. DISPUTE
RESOLUTION. Except for
equitable actions seeking to enforce the covenants in paragraph 9 or 10 of
this Agreement, jurisdiction and venue for which is hereby granted to the court
of general trial jurisdiction in the state and county where Employer’s or its
applicable Affiliate’s principal place of business is located, any and all
claims, disputes, or controversies arising between the parties regarding any
of
the terms of this Agreement or the breach thereof, shall, on the written demand
of either of the parties, be submitted to and be determined by final and binding
arbitration held in the local jurisdiction where Employer’s or Employer’s
Affiliate’s principal place of business is located, in accordance with
Employer’s or Employer’s Affiliate’s arbitration policy governing employment
disputes. This agreement to arbitrate shall be specifically
enforceable in any court of competent jurisdiction.
20. WAIVER.
None of the terms of this Agreement, including this paragraph 21, or any
term, right or remedy hereunder shall be deemed waived unless such waiver is
in
writing and signed by the party to be charged therewith and in no event by
reason of any failure to assert or delay in asserting any such term, right
or
remedy or similar term, right or remedy hereunder.
21. PAROL.
This Agreement constitutes the entire agreement between Employer and Employee
with respect to the subject matter hereto and this Agreement supersedes any
prior understandings, agreements, undertakings or
severance policies or plans
by and between Employer or Employer’s Affiliates, on the one side, and Employee,
on the other side, with respect to the subject matter hereof or Employee’s
employment with Employer or Employer’s Affiliates.
IN
WITNESS WHEREOF AND
INTENDING TO BE LEGALLY BOUND THEREBY, the parties hereto have
executed and delivered this Agreement as of the year and date first above
written.
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14
|
XXXX
INTERNATIONAL MARKETING, LTD.
|
EMPLOYEE
|
|
By:
|
/s/
Xxxxxxx X. Xxxx
|
/s/
Ian Xxxxxxx Xxxxxxxx
|
||
|
Ian
Xxxxxxx Xxxxxxxx
|
||||
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15
____________________________________________
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
(“Agreement”)
-
by
and between -
XXXX
INTERNATIONAL MARKETING, LTD.
(“Employer”)
-
and
-
IAN
XXXXXXX XXXXXXXX (“Employee”)
____________________________________________
DATED: as
of July 4, 2007
____________________________________________
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16
