AMENDMENT NUMBER 2 TO EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.4
AMENDMENT NUMBER 2 TO
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDMENT NUMBER 2 TO EXECUTIVE EMPLOYMENT AGREEMENT (this “Amendment”) is made and
entered into as of May 31, 2008, by and between Ameristar Casinos, Inc., a Nevada corporation (the
“Company”), and Xxxxx X. Xxxxx (the “Executive”).
WHEREAS, the Company and the Executive are parties to an Executive Employment Agreement, dated
as of March 13, 2002, as previously amended by Amendment to Executive Employment Agreement dated as
of August 16, 2002 (as so amended, the “Agreement”); and
WHEREAS, the Company and the Executive desire to amend the Agreement in certain respects as
more particularly set forth in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the Company and the Executive agree as follows:
1. Amendment to Section 2.3. Section 2.3 of the Agreement is hereby amended by
deleting the first three sentences thereof and replacing them with the following:
“During the Term of Employment, the Executive shall be employed as Senior Vice President,
General Counsel and Chief Administrative Officer of the Company and will perform such other
duties and services as, from time to time, are reasonably required by the Company’s Chief
Executive Officer or the Board. The Executive shall be appointed by the Board as a
corporate executive officer of the Company at all times during the Term of Employment. The
Executive will report directly to the Chief Executive Officer of the Company. During the
Term of Employment, the Company will not reduce the title or responsibilities of the
Executive.”
2. Amendment to Section 3.1. Section 3.1 of the Agreement is hereby amended effective
as of the date hereof, by deleting the words “Three Hundred Thousand Dollars and 00/100 ($300,000)”
and replacing them with “Five Hundred Thousand Dollars ($500,000)”.
3. Retroactive Base Salary Increase. Within ten (10) days following the date hereof,
the Company shall pay to the Executive an amount equal to the aggregate incremental amount the
Executive would have been paid as Base Salary from January 1, 2008 through the date hereof had the
Executive’s Base Salary on January 1, 2008 equaled Four Hundred and Twenty-Five Thousand Dollars
($425,000) rather than Four Hundred Thousand Dollars ($400,000).
4. Amendment to Section 3.2. Effective for the year ending December 31, 2008 and
each fiscal year thereafter, Section 3.2 of the Agreement is hereby deleted in its entirety and
replaced with the following:
“3.2 Annual Bonus. The Executive will be eligible to receive a discretionary
bonus for each fiscal year of the Company at a target level of seventy-five percent (75%)
of the Executive’s weighted average Base Salary for such fiscal year (“Annual Bonus”). The
actual Annual Bonus awarded will range from zero to one hundred and fifty percent (150%) of
the Executive’s weighted average Base Salary and will depend upon the Company’s financial
performance, the Executive’s merit performance and such other factors as the Compensation
Committee may determine.”
5. Supplemental 2008 Annual Bonus. In addition to the annual bonus for the year
ending December 31, 2008 to which the Executive is currently entitled under the terms of the
Company’s Performance-Based Annual Bonus Plan, the Executive shall be entitled to an additional
discretionary bonus for the year ending December 31, 2008 in an amount such that, when combined
with the annual bonus, if any, the Executive earns under the terms of the Company’s
Performance-Based Annual Bonus Plan as in existence prior to the date hereof, the Executive’s total
bonus payments for such year equal the amount the Executive would have received under the Company’s
Performance-Based Annual Bonus Plan for the year had the Executive’s target annual bonus at the
beginning of the year equaled 75% of his weighted average Base Salary for the year.
6. Additional Equity Compensation Awards. The Executive will be granted a number of
non-qualified stock options and restricted stock units during the Company’s next annual equity
compensation award cycle. The number of shares subject to these awards will be determined pursuant
to the Company’s equity compensation award program; provided, however, that the Executive’s equity
compensation award allocation for such grant cycle shall be based upon 150% of the Executive’s
then-current Base Salary. If approved by the Compensation Committee, these options and restricted
stock units will be made subject to the Company’s standard terms and conditions for senior
executives and be evidenced by separate award agreements, the terms of which will exclusively
govern the awards. In addition to the above-described equity awards, commencing in 2009, the
Executive will be eligible to receive annual equity awards based on his position, salary level,
performance bonus grade and other factors in accordance with and subject to the terms of the
Company’s equity compensation program as in effect from time to time.
7. New Section 25. The following new Section 25 is hereby added to the Agreement with
the existing Sections 25, 26, 27 and 28 renumbered to Sections 26, 27, 28 and 29, respectively:
“25 SECTION 409A COMPLIANCE
25.1 A termination of employment shall not be deemed to have occurred for purposes of
any provision of this Agreement providing for the
payment of any amounts or benefits upon or following a termination of employment
unless such termination is also a “separation from service” within the meaning of Code
Section 409A and the regulations and guidance promulgated thereunder (collectively, “Code
Section 409A”) and, for purposes of any such provision of this Agreement, references to a
“termination,” “termination of employment” or like terms shall mean “separation from
service.” If Executive is deemed on the date of termination to be a “specified employee”
within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any
payment or the provision of any benefit that is specified as subject to this Section 25 or
that is otherwise considered deferred compensation under Code Section 409A payable on
account of a “separation from service,” such payment or benefit shall be made or provided
at the date which is the earlier of (i) the expiration of the six (6)-month period measured
from the date of such “separation from service” of the Executive or (ii) the date of
Executive’s death (the “Delay Period”). Upon the expiration of the Delay Period, all
payments and benefits delayed pursuant to this Section 25.1 (whether they would
have otherwise been payable in a single sum or in installments in the absence of such
delay) shall be paid or reimbursed to Executive in a lump sum without interest, and any
remaining payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
25.2 With regard to any provision herein that provides for reimbursement of costs and
expenses or in-kind benefits, except as permitted by Code Section 409A, all such payments
shall be made on or before the last day of calendar year following the calendar year in
which the expense occurred.”
8. Confirmation. Except as amended pursuant to this Amendment, the terms of the
Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written
above.
| AMERISTAR CASINOS, INC. | EXECUTIVE: | |||
By: |
/s/ Xxxxxx X. Xxxxxxxx | /s/ Xxxxx X. Xxxxx | ||
Name:
|
Xxxxxx X. Xxxxxxxx | XXXXX X. XXXXX | ||
Title:
|
Vice Chairman of the Board | |||
| and Chief Executive Officer | ||||
