EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (this "Agreement") is entered into as of August 14, 2006,
by and between The Majestic Star Casino, LLC ("Employer" or the “Company”) and
Xxx Xxxxx Xxxxxxx ("Executive").
| 1. |
Employment.
Employer hereby employs Executive, and Executive hereby accepts employment
by the Employer, as the Vice President and Chief Financial Officer
of the
Company 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. |
Effective
Date; Specified Term.
This Agreement shall be effective as of July 3, 2006 (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. Employer shall provide at least
ninety
(90) days advance written notice to Executive if Employer decides
not to
renew this Employment Agreement. If Executive remains employed by
Employer
after the Specified Term, on an at-will basis, and if Employer decides
to
exercise its right to terminate Executive, Employer shall provide
Executive thirty (30) days notice in advance of the Employer’s decision to
terminate Executive. Employer shall also have the right to pay Executive
the equivalent of thirty (30) days’ Base Salary (defined below) in lieu of
thirty (30) days notice of an at-will termination. Conversely, if,
after
the Specified Term, Executive decides to resign from his position,
Executive shall provide Employer thirty (30) days’ advance notice of the
effective resignation date. Employer will determine, at its sole
discretion, if Executive will be released immediately and paid the
equivalent of thirty (30) days’ Base Salary (defined below) in lieu of
Executive working the full 30-day period.
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| 3. |
Compensation.
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| a. |
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 Three Hundred
Thousand Dollars ($300,000). 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. |
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 Executive’s Base Salary actually paid during the
year and based on the current bonus program in effect at that time.
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| c. |
Executive
Benefit Programs.
During the Specified Term, Executive shall be entitled to participate
in
all of Employer's Executive 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
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)
per
calendar year for unreimbursed medically necessary expenses incurred
in
the same calendar year and submitted in accordance with Company expense
procedures.
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| d. |
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. |
Automobile
Allowance.
Executive shall be entitled to an automobile allowance of $500 per
month
during the Specified Term.
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| f. |
Vacation.
At the Effective Date, Executive shall be entitled to four (4) work
weeks
(the equivalent of twenty (20) days) of 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. |
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 compen-sation, 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.
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| 5. |
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. |
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. |
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. |
Restrictive
Covenants.
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| a. |
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
paragaraphs, 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 in any county
where
the Company has gaming operations, 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. |
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;
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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
discre-tion.
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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
custom-ers, 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 (regard-less of
whether
Executive possessed or claims to have possessed such information
prior to
the date hereof). Executive agrees that upon termination of employ-ment,
Executive shall promptly return to the Employer all documents, papers,
notes, notebooks, memo-xxxxx, 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. |
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 termina-tion 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.
| 10. |
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. |
Termination
by Employer
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| a. |
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 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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Employment
Agreement
Page
8 of
13
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b.
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Without
Cause.
Employer may terminate Executive at any time during the Specified
Term
upon ninety (90) days’ written notice, or, in the Employer’s sole
discretion, the equivalent of ninety (90) 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 provisions of paragraph 8(a) in the event Employer
terminates Executive without
Cause. |
| 12. |
Termination
By Executive
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| a. |
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, and (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).
Good
Reason shall not exist unless Executive first provides Employer’s Chief
Operating Officer with written notice of the facts alleged to constitute
Good Reason and until such breach, reduction or requirement remains
uncured for twenty (20) business days following the Chief Operating
Officer’s receipt of such written notice from Executive. This twenty (20)
business day cure period shall not apply to a Change in
Control.
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| b. |
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. |
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. |
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. |
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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Employment
Agreement
Page
9 of
13
| 16. |
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.
| 17. |
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:
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With
a copy to its:
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The
Majestic Star Casino, LLC
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The
Majestic Star Casino, LLC
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000
Xxxxxxx Xxxxxx
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/x
Xxxxxx Development, Inc.
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Xxx
Xxxxx, XX 00000
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163
Madison, Suite 2000
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Attn:
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Xxxx
Xxxxxx
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Xxxxxxx,
XX 00000
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Chief
Operating Officer
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Attn:
Xxx X. Xxxxxx
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Facsimile
#: 000-000-0000
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Facsimile
#: 000-000-0000
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AND
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Vice
President of Human Resources
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000
Xxxxxxx Xxxxxx
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Xxx
Xxxxx, XX 00000
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Facsimile
#: 000-000-0000
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Employment
Agreement
Page
10 of
13
To
Executive:
Xxx
X.
Xxxxxxx
0000
Xxx Xxxxxxx
Xx.
Xxx
Xxxxx, XX
00000
Facsimile
#:
000-000-0000
or
to such other
address as either party shall have furnished to the other in writing in
accordance herewith.
| 18. |
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 be withheld under any applicable law
or
regulation.
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| 19. |
Dispute
Resolution.
|
| a. |
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.
|
| b. |
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.
|
| c. |
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.
|
| d. |
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. |
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.
|
| 20. |
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.
|
| 21. |
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 Chief Operating Officer (other than Executive), 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 Chief Operating Officer (other than Executive). Any such waiver
or
consent shall be effective only in the specific instance and for
the
specific purpose for which given.
|
| 22. |
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.
|
| 23. |
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.
|
| 24. |
Assignment.
This Agreement is personal to Executive and may not be assigned by
Executive.
|
| 25. |
Successors
and Assigns.
This Agreement may be assigned by Employer to its successors and
shall be
binding upon the successors and assigns of Employer.
|
| 26. |
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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IN
WITNESS WHEREOF,
Employer and Executive have entered into this Agreement
as
of the
date first written above.
XXX
X. XXXXXXX
/s/
Xxx X. Xxxxxxx
Signature
Date:
August
14, 2006
THE
MAJESTIC STAR CASINO, LLC
By: /s/
Xxxx Xxxxxx
Xxxx Xxxxxx
Its: Executive
Vice President and Chief Operating Officer
Date: August
14, 2006
Employment
Agreement
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