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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as
of the 31ST day of August 2005, by and between WYNN RESORTS, LIMITED
("Employer") and Xxxx Xxxxxxx ("Employee").
W I T N E S S E T H:
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WHEREAS, Employer is a corporation duly organized and existing under
the laws of the State of Nevada, maintains its principal place of business at
0000 Xxx Xxxxx Xxxx. Xxxxx, Xxx Xxxxx, Xxxxxx 00000, and is engaged in the
business of developing, constructing and operating a casino resorts; and,
WHEREAS, in furtherance of its business, Employer has need of
qualified, experienced executive management; and,
WHEREAS, Employee currently serves as the Executive Vice President -
Chief Financial Officer of the Employer pursuant to the terms of an Employment
Agreement dated as of September 9, 2002 (the "2002 Agreement") between
Employee and Employer as amended by that certain First Amendment to Employment
Agreement dated December 11, 2002 (the "Amendment") between Employee and
Employer (the 2002 Agreement and the Amendment are collectively referred to
herein as, the "Prior Agreement"); and
WHEREAS, Employee and Employer desire to terminate the Prior
Agreement and replace it with this Agreement; and
WHEREAS, 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,
WHEREAS, Employer is willing to continue to employ Employee, and
Employee is desirous of continuing his employment with the 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 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.
(b) "Cause" - means
(i) the willful destruction by Employee of the
property of Employer or an Affiliate 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);
(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);
(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, that is
not cured within fifteen (15) days after Employee has
received written notice thereof from the Board;
(v) a willful and knowing material
misrepresentation to Employer's Board of Directors;
(vi) a willful violation of a material policy of
Employer, which does or could result in material harm to
Employer or to Employer's reputation; or
(vii) Employee's material violation of a statutory
or common law duty of loyalty or fiduciary duty to 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.
(c) "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 Employer, or of any entity
resulting from a merger or consolidation involving Employer,
representing more than fifty percent (50%) of the combined
voting power of the then outstanding securities of Employer
or such entity;
(ii) the individuals who, as of the Effective Date,
are members of Employer's Board of Directors (the "Existing
Directors") cease, for any reason, to constitute more than
fifty percent (50%) of the number of authorized directors of
Employer as determined in the manner prescribed in
Employer's Articles of Incorporation and Bylaws; provided,
however, that if the election, or nomination for election,
by Employer'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 Board (a "Proxy Contest"), 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 in Control" pursuant
to subparagraph (i) of this definition of "Change in
Control"; provided, however, that no such Transaction shall
constitute a "Change in 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 in 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.
(d) "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.
(e) "Confidential Information" - means any information that
is possessed or developed by or for Employer or its Affiliate and
which relates to the Employer's or Affiliate's 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 Affiliate, or which Employer or Affiliate
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 Affiliate, and any other
proprietary material of Employer or Affiliate, 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 Affiliate has an obligation to treat
as confidential.
(f) "Effective Date" - means August 1, 2005.
(g) "Original Hire Date" - means November 1, 2000.
(h) "Good Reason" - means the occurrence, on or after the
occurrence of a Change in Control, 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 reduces Employee's
Base Salary (as defined in Subparagraph 8(a) below);
(ii) Employer discontinues its bonus plan in which
Employee participates as in effect immediately before the
Change in Control 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 immediately before the Change in Control;
(iv) Employer or any of its Affiliates requires
Employee to change the location of Employee's job or office,
so that Employee will be based at a location more than 25
miles from the location of Employee's job or office
immediately before the Change in Control;
(v) 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 immediately before the Change in
Control; or
(vi) 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.
(i) "Separation Payment" - means a lump sum equal to (A)
Employee's Base Salary (as defined in Subparagraph 8(a) of this
Agreement) for the remainder of the Term, but not less than one (1)
year of Base Salary, plus (B) the bonus that was paid to Employee
under Subparagraph 8(b) for the preceding bonus period, projected
over the remainder of the Term (but not less than the preceding bonus
that was paid), plus (C) any accrued but unpaid vacation pay, plus
(D) any Gross-Up Payment required by Exhibit 1 to this Agreement,
which is incorporated herein by reference.
(j) "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.
(k) "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. PRIOR EMPLOYMENT. This Agreement supersedes and replaces any and
all prior employment agreements, 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, with the exception of any agreement
pertaining to the issuance of stock options or restricted stock to Employee by
Employer or any of its Affiliates. From and after the Effective Date, Employee
and Employer agree that the Prior Agreement shall be terminated and Employee
shall be the employee of Employer under the terms and pursuant to the
conditions set forth in this Agreement.
3. 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 4 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.
4. DUTIES OF EMPLOYEE. Employee shall perform such duties assigned to
Employee by Employer as are generally associated with the duties of Executive
Vice President - Chief Financial Officer of Employer or such similar duties as
may be assigned to Employee by Employer as Employer may determine, including,
but not limited to (a) the efficient and continuous operation of Employer and
Employer's Affiliates, (b) the preparation of relevant budgets and allocation
or relevant funds, (c) conducting a search for an individual qualified to
assume the duties of the chief financial officer of the Company as may be
directed by management or Employer's Board of Director, and to educate such
individual about Employee's duties and Employer's operations (following the
selection of such qualified individual, Employee shall assume such other title
and responsibilities as may be assigned by Employer; provided that such title
and responsibilities shall be commensurate with Employee's professional status
and shall be based in Las Vegas, Nevada), (d) the selection and delegation of
duties and responsibilities of subordinates, (e) the direction, review and
oversight of all programs and projects under Employee's supervision, and (f)
such other and further related duties as specifically assigned by Employer to
Employee. 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.
5. ACCEPTANCE OF EMPLOYMENT. Employee hereby unconditionally accepts
the employment set forth hereunder, under the terms and pursuant to the
conditions set forth 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.
6. TERM. Unless sooner terminated as provided in this Agreement, the
term of this Agreement (the "Term") shall commence on the Effective Date and
terminate at the end of the day on August 1, 2008. 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.
7. SPECIAL TERMINATION PROVISIONS. Notwithstanding the provisions of
Paragraph 6 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 following a denial or revocation of
Employee's License (as defined in Subparagraph 9(b) of this
Agreement).
(e) 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;
(f) 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; or
(g) at Employee's sole election in writing as provided in
Paragraph 17 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.
In the event of a termination of this Agreement pursuant to the provisions of
Subparagraph 7(a), (b), (c) or (d), 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 (e), (f) or (g),
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 7 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 7 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 Employee is required to make an election
under Sections 601 through 607 of the Employee Retirement Income Security Act
of 1974, as amended (commonly known as COBRA) to qualify for the health
benefits described in this Paragraph 7, the obligations of Employer and its
Affiliates under this Paragraph 7 shall be conditioned upon Employee's timely
making such an election. In the event of a termination of this Agreement
pursuant to any of the provisions of this Paragraph 7, Employee shall not be
entitled to any benefits pursuant to any severance plan in effect by Employer
or any of Employer's Affiliates.
8. COMPENSATION TO EMPLOYEE. For and in complete consideration of
Employee's full and faithful performance of Employee's duties under this
Agreement, 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 at the rate of Six Hundred Thousand Dollars
($600,000.00) per annum during the Term, payable in such weekly,
bi-weekly or semi-monthly installments as shall be convenient to
Employer (the "Base Salary"). Employee's 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 8(b)
through (e) of this Agreement. Employee's Base Salary shall be
subject to merit review by Employer's Board of Directors
periodically, and may be increased, but not decreased, as a result of
any such review.
(b) BONUS COMPENSATION. Employee also will be eligible to
receive a bonus at such times and in such amounts as Employer's Board
of Directors, in its sole and exclusive discretion, may determine,
but in no event shall Employee's bonus for the fiscal year ended
December 31, 2005 be less than Two Hundred Thousand Dollars
($200,000.00). For fiscal year 2006 and thereafter, Employee's bonus
shall be determined pursuant to the Employer's Section 162
Performance Based Bonus Plan. Nothing in this Agreement shall limit
the Board's discretion to adopt, amend or terminate any
performance-based bonus plan at any time prior to a Change of
Control.
(c) EMPLOYEE BENEFIT PLANS. Employer hereby covenants and
agrees that it shall include Employee, if otherwise eligible, in any
profit sharing plan, executive 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 (i) Employer's ability to exercise the
discretion provided to it under any such benefit plan, or (ii)
Employer's or its Affiliates' discretion to adopt, amend or terminate
any such benefit plan, at any time prior to a Change of Control.
Subject to and effective upon the approval of the Compensation
Committee of Wynn Resorts, Limited, Employee shall at the earliest
possible time after the Effective Date be granted 50,000 stock
options of Wynn Resorts, Limited common stock under the Wynn Resorts,
Limited 2002 Stock Incentive Plan. Nothing in this Agreement shall
limit Employer's or any of its Affiliates' ability to exercise the
discretion provided to it under any employee benefit plan, or to
adopt, amend or terminate any benefit plan at any time.
(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, and (iv) the like. Prior to reimbursement, Employee
shall provide Employer with sufficient detailed invoices of such
expenses as may be required by Employer's expense reimbursement
policy.
(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, but in
no event less than four (4) weeks each year of the Term, to be taken
at such times as selected by Employee and 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.
(f) WITHHOLDINGS. All compensation to Employee identified in
this Paragraph 8 shall be subject to applicable withholdings for
federal, state or local income or other taxes, Social Security Tax,
Medicare Tax, State Unemployment Insurance, State Disability
Insurance, voluntary charitable contributions and the like.
(g) Original Hire Date. Employee's Original Hire Date shall
be used for determining benefits not otherwise set forth in this
Agreement.
9. 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 his duties and responsibilities set forth in Paragraph 4 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 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(b) of this Agreement, then Employer's
obligations under this Paragraph 9 shall not be operative and
Employee shall promptly reimburse Employer upon demand for any
expenses incurred by Employer pursuant to this Paragraph 9.
(c) Employer and Employee hereby covenant and agree that the
provisions of this Paragraph 9 shall apply in the event Employee's
duties require that Employee also be licensed by such relevant
governmental agencies other than the Gaming Authorities.
10. 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, 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 Section 10 are continuing and
shall survive the termination of Employee's employment with Employer.
11. RESTRICTIVE COVENANT/NO SOLICITATION.
(a) Employee hereby covenants and agrees that, during the
Term, or for such period as Employee receives cash compensation under
this Agreement, whichever period is shorter, Employee shall not
directly or indirectly, either as a principal, agent, employee,
employer, consultant, partner, member or manager 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 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 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 11(a), Employee shall not
directly or indirectly 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.
12. 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.
13. SUCCESSION. This Agreement shall be binding upon and inure to the
benefit of Employer and Employee and their respective successors and assigns.
14. 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
14 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.
15. AMENDMENT OR MODIFICATION. This Agreement may not be amended,
modified, changed or altered except by a writing signed by both Employer and
Employee.
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the jurisdiction where Employer's principal
place of business is located in effect on the Effective Date of this
Agreement.
17. 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 Resorts, Limited
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: Xxxx Xxxxxxx
Xxx Xxxxxx Xxxxxx Xxxxx
#000
Xxx Xxxxx, XX 00000
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 17.
18. 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.
19. 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.
20. DISPUTE RESOLUTION. Except for equitable actions seeking to
enforce the covenants in Paragraph 10 or 11 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.
21. 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.
22. PAROL. This Agreement constitutes the entire agreement between
Employer and Employee with respect to the subject matter hereto and, except
for any agreement pertaining to the issuance of restricted stock to Employee
by Employer or any of its Affiliates, 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 its 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.
WYNN RESORTS, LIMITED EMPLOYEE
By: /s/ Xxxx Xxxxxx /s/ Xxxx Xxxxxxx
----------------------------------- -------------------------
Xxxx Xxxxxx Xxxx Xxxxxxx
Chief Operating Officer
--------------------------------------------
EMPLOYMENT AGREEMENT
("Agreement")
- by and between -
WYNN RESORTS, LIMITED
("Employer")
- and -
XXXX XXXXXXX
("Employee")
--------------------------------------------
DATED: as of August 31, 2005
--------------------------------------------
