ASSIGNMENT, ASSUMPTION AND FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT 10.1
ASSIGNMENT,
ASSUMPTION AND FIRST AMENDMENT
THIS
ASSIGNMENT, ASSUMPTION AND FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is made
and entered into as of December 5, 2008 ("Effective Date"), by
and among Xxxxxx Nevada Gaming, LLC, a Nevada limited liability company ("BNG"), The Majestic
Star Casino, LLC, an Indiana limited liability company ("Majestic Star" or
"Employer"),
and Xxxxxxx Xxxxxx, an individual ("Executive"). All
capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Employment Agreement, dated June 11, 2007 ("Employment
Agreement"), by and between BNG and Executive.
RECITALS
A. Pursuant
to the Employment Agreement, Executive currently serves as Senior Vice President
and General Manager of Fitzgeralds Casino and Hotel – Las Vegas.
B. BNG
desires Executive to undertake, and Executive agrees to undertake, additional
responsibilities as the Interim Chief Operating Officer ("COO") of Majestic
Star.
C.
In connection with the foregoing, BNG first desires to assign, and Majestic Star
agrees to assume, on the Effective Date, all of BNG's right, title, benefit,
privileges and interest in and to, and all of BNG’s obligations and liabilities
in connection with, the Employment Agreement (the "Assignment").
D. Following
the Assignment, Majestic Star and Executive desire to amend the Employment
Agreement to reflect Executive's additional responsibilities as the Interim COO
of Majestic Star.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises, covenants
and representations hereinafter contained, and subject to the conditions
hereinafter set forth, it is agreed that the foregoing recitals are true and
correct and it is further agreed as follows:
1. Assignment
and Assumption.
(a) On
the Effective Date, BNG hereby conveys, transfers and assigns unto Majestic Star
all of BNG’s right, title, benefit, privileges and interest in and to, and all
of BNG’s obligations and liabilities in connection with, the Employment
Agreement.
(b) Majestic
Star hereby accepts such assignment of the Employment Agreement by BNG and
agrees to assume BNG's rights and duties thereunder.
(c) Executive
hereby agrees to accept, from and after the Effective Date, the performance of
Majestic Star under the Employment Agreement in place and instead of
BNG.
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2. Amendments
to Employment Agreement. Following the
Assignment and in accordance with Section 21 of the Employment Agreement,
Majestic Star and Executive hereby consent to and approve of the amendment of
the Employment Agreement as follows:
(a) Paragraph
1 shall be deleted in its entirety and replaced with the following paragraph
1:
1. Employment; COO
Duties. Employer will continue to employ Executive, and
Executive will continue to accept employment by Employer, as the Senior Vice
President and General Manager of Fitzgeralds Casino and Hotel – Las Vegas and
agrees to perform such executive, managerial and administrative duties
commensurate with Executive’s position, as Employer may specify from time to
time, during the Specified Term. In addition, Employer desires that
Executive undertake, and Executive agrees to undertake, additional
responsibilities as the COO for Employer (collectively, "COO Duties")
commencing on the Effective Date and continuing through the Termination Date (as
defined below) ("Interim
Period"). The COO Duties shall consist of such executive,
managerial and administrative duties commensurate with the position of COO of
Employer, as Employer may specify from time to time, during the Interim
Period. The COO Duties shall include, without limitation, operational
oversight of all gaming properties of Employer.
(b) Paragraph
17 shall be amended to reflect the following address for
Employer:
The Majestic Star Casino, LLC c/x
Xxxxxx Development, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxx
President/Chief Executive
Officer
Facsimile #: 000-000-0000
(c) Paragraphs
11.a. and 11.b. shall be deleted in their entirety, and all references to
paragraphs 11.a. and 11.b. in the Employment Agreement shall be deleted, as
necessary, accordingly.
(d) Paragraphs
12.a (i) and 12. a (ii) shall be deleted in their entirety. Except as
modified herein, the provisions in Paragraph 12(a) (iii) governing the rights
and obligations of BNG and Executive in the event of a Change in Control shall
remain in full force and effect during the Interim Period. During the
Interim Period, all references in Paragraph 12(a) (iii) to “Employer” shall mean
BNG and not Majestic Star. It is understood and agreed that in the
event of a Change of Control of BNG in a transaction pursuant to which BNG
transfers its assets in a series of closings, BNG’s obligation to make the
payments and provide the benefits set forth in 12.a and Executive’s entitlement
to receive such payments and benefits shall not be triggered until the final
closing. It is further understood and agreed that Executive shall not
be entitled to any payments under Paragraph 12.a. if Executive holds the
position of Chief Operating Officer of Majestic Star (as opposed to Interim
Chief Operating Officer) on the date of the final closing.
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(e) All
references to Executive Vice President/Chief Operating Officer in the Employment
Agreement shall be replaced with "President/Chief Executive
Officer”.
(f) The
following new paragraph 27 will be added, and all references to numbered
paragraphs in the Employment Agreement shall be adjusted, as necessary,
accordingly:
27. Interim
Period. Executive will perform the COO Duties for the period
of time ("Interim
Period") commencing on the Effective Date and expiring on the date
Employer has employed a new COO or on a date as otherwise determined by
Employer, in Employer's sole discretion ("Termination
Date"). On, or within a reasonable period of time following,
the Termination Date, Employer shall pay Executive (1) unpaid Base Salary earned
through the Termination Date; and (2) unreimbursed business
expenses. Employer will provide Executive with 30 days advance
written notice of the Termination Date or such advance notice as may be
reasonably practicable under the circumstances. On the Termination
Date, Executive agrees to surrender his Interim COO title, cease performing the
COO Duties and return full-time to his role of Senior Vice President and General
Manager of Fitzgeralds Casino and Hotel - Las Vegas.
(a) Executive
may terminate Executive’s employment as Interim COO upon sixty (60) days prior
written notice to Employer.
(b)
During the Interim Period, the Base Salary shall be increased from Two Hundred
and Seventy Thousand Dollars ($270,000.00) to Three Hundred and Seventy-Five
Thousand Dollars ($375,000.00).
(c) During
the Interim Period, the target rate of Executive's bonus compensation shall be
increased from thirty percent (30%) to forty percent (40%) of the Base
Salary. For 2008, Executive's bonus will be computed from January 1,
2008 through September 12, 2008 based on the results and criteria for
Fitzgeralds Casino and Hotel - Las Vegas. During the Interim
Period, Executive’s bonus will be computed based on the criteria for the
corporate management bonus plan.
3. Validity
of Amendment; Re-Assignment; Re-Assumption. On the Termination
Date, this Amendment shall be null and void and of no further force and effect,
and the Employment Agreement shall continue in full force and effect as though
this Amendment had not been executed; provided, however, that Executive shall be
entitled to continue to receive any merit increases to his Base Salary (which
will be based, if applicable, on the Base Salary in the Employment
Agreement).. On the Termination Date, Majestic Star hereby
agrees to re-assign to BNG, and BNG hereby agrees to re-assume from Majestic
Star, the Employment Agreement. Upon such re-assignment and
re-assumption, Executive hereby agrees to accept the performance of BNG under
the Employment Agreement in place and instead of Majestic Star.
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4. Effect on
the Employment
Agreement. Except
as specifically amended hereby and unless the context requires otherwise, all
provisions of the Employment Agreement remain in full force and
effect.
5. Execution
in Counterparts. This
Amendment may be executed in any number of counterparts including, without
limitation, facsimile counterparts, each of which shall constitute an original,
and together shall constitute one and the same document.
6. Governing
Law. This
Amendment shall be governed by and construed in accordance with the laws of the
State of Nevada.
IN
WITNESS WHEREOF, this Amendment was executed as of the date first-above
written.
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“BNG”
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Xxxxxx
Nevada Gaming, LLC,
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A
Nevada limited liability company
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By:
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/s/
Xxx Xxxxxx
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Name:
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Xxx
Xxxxxx
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Its:
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CEO/President
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“MAJESTIC
STAR”
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The
Majestic Star Casino, LLC,
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an
Indiana limited liability company
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By:
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/s/
Xxx Xxxxxx
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Name:
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Xxx
Xxxxxx
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Its:
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CEO/President
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“EXECUTIVE”
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
Xxxxxx
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