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Exhibit 10(15)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and entered
into this day of _________, 1998, by and between Stratosphere Corporation, a
Delaware corporation (the "Corporation"), Stratosphere Gaming Corp., a Nevada
corporation ("Gaming Corp." and together with the Corporation, the "Debtors" and
after the effective date of any plan of reorganization, the "Reorganized
Debtors") and Xxxxxx X. Xxxxxxx (the "Executive").
PRELIMINARY STATEMENTS
A. The Corporation is the owner of that certain hotel and casino known as
the Stratosphere Hotel & Casino located in Las Vegas, Nevada (the "Hotel").
Gaming Corp. is a wholly-owned subsidiary of the Corporation and operates the
Hotel.
B. On January 27, 1997, the Corporation and Gaming Corp. each filed their
Voluntary Petitions for bankruptcy protection under Title 11, Chapter 11 of the
United States Code in the United States District Court for the District of
Nevada (the "Bankruptcy Court") and are seeking confirmation of a plan of
reorganization.
C. The Debtors (and on behalf of Reorganized Debtors after the effective
date (the "Effective Date") of a plan of reorganization) desire to secure the
benefits of the Executive's background, knowledge, experience, ability,
expertise and industry to promote and maintain the Debtors' and Reorganized
Debtors' stability, growth, viability and profitability.
D. The Debtors desire to engage the services of the Executive who is
desirous of being employed by the Debtors and Reorganized Debtors under the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, together with other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Employment of the Executive. On the date on which a written order
confirming a plan of reorganization is entered by the Bankruptcy Court (the
"Confirmation Date"), the Debtors shall employ the Executive and the Executive
shall accept such employment and agrees to perform the duties and
responsibilities set forth herein upon the terms and conditions set forth
herein.
2. Term. The term of the Executive's employment pursuant to this Agreement
(the "Term") shall commence on the Confirmation Date and shall continue for
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a period of twenty-four (24) months thereafter, unless sooner terminated in
accordance with this Agreement.
3. Duties and Responsibilities. On the Confirmation Date, the Executive
shall continue as Chief Financial Officer of the Debtors and on the Effective
Date the Executive shall be named Chief Financial Officer of the Reorganized
Debtors. The Executive shall perform the duties customarily performed by a Chief
Financial Officer for the Debtors and thereafter the Reorganized Debtors.
Additionally, if elected, the Executive shall serve on the boards of directors
of the Debtors and thereafter the Reorganized Debtors. During the Term, the
Executive shall report directly to the boards of directors of the Debtors or the
Reorganized Debtors, as the case may be, and shall have the responsibilities as
may be specified from time to time by the boards of directors. During the Term
and except for any vacation periods, the Executive shall devote substantially
all of his business time and attention to the business of the Debtors and
thereafter the Reorganized Debtors and shall not engage in any other business
activities or pursuits which would preclude the Executive from performing his
duties under this Agreement except as may be approved by the boards of directors
of the Debtors and thereafter the Reorganized Debtors; provided, however, the
Executive shall not be precluded from involvement in charitable or civic
activities or his personal financial investments provided the same do not
interfere with his time or attention to the business of the Debtors and
thereafter the Reorganized Debtors. The Executive shall perform all such duties
to the best of his ability and in a diligent manner.
4. Compensation.
a) Salary. The Executive shall receive an annual salary of Three Hundred
Thousand Dollars ($300,000) ("Salary") for performing his duties as Chief
Financial Officer, which Salary shall be payable in at least monthly
installments, less all applicable federal, state and local taxes, social
security and any other government mandated deductions. The Executive shall not
receive any additional compensation for serving on the boards of directors of
either the Debtors or the Reorganized Debtors.
b) Stock Option Plans. If, during the Term, the Reorganized Debtors
establish and institute an executive bonus plan, stock option plan or any
similar such plan, the Executive shall be entitled to participate in any such
plan to the extent such plans are established by the Reorganized Debtors and to
the extent the Reorganized Debtors provide such plans for all senior executives
of the Reorganized Debtors.
c) Health Benefits. The Executive shall continue to receive healthcare
benefits (including dental and vision) for the Executive and his family in
accordance with the Debtor's pre-January 27, 1997 policies and practices. In the
event of a termination of the Executive's employment with the Debtors or
Reorganized Debtors without cause, such existing healthcare benefits will be
extended for the Executive until the earlier of (i) the qualification and
eligibility of the Executive for healthcare plan benefits under another group
health plan; or (ii) ninety (90) days.
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d) Business Expenses. Upon presentation of an itemized account and written
proof of such expenses, the Debtors and the Reorganized Debtors shall reimburse
the Executive for all reasonable business expenses incurred by him in connection
with the performance of his duties under this Agreement.
e) Vacation. The Executive shall be entitled to vacation and holiday pay
that the Debtors and thereafter the Reorganized Debtors provide to all senior
executives; provided, however, that in no event shall the vacation time afforded
to the Executive under such policy be less than three (3) weeks per annum.
5. Termination.
a) During the Term, the Executive may be terminated by the Debtors and
thereafter the Reorganized Debtors at any time; provided, however, in the event
the Executive is terminated without "Cause" (as defined herein) or there is a
"Change of Control" (as defined herein), then the Executive shall receive an
immediate severance payment of $200,000.
b) In the event the Executive remains in the employment of the Debtors and
the Reorganized Debtors for the entire Term and is not retained as Chief
Financial Officer after the Term and the Debtors and thereafter the Reorganized
Debtors do not provide ninety (90) days prior written notice of their intent not
to retain the Executive, then the Executive shall receive immediate termination
compensation of Seventy-Five Thousand Dollars ($75,000).
c) The Executive may, at the Executive's sole option and right, terminate
this Agreement at any time by providing ninety (90) days' prior written notice,
and the Debtors and the Reorganized Debtors shall be under no obligation to the
Executive except to pay him compensation for such services as may have been
performed up to the effective date of such termination.
For the purposes of this Agreement, termination for "cause" shall mean: (i)
the commission of fraud, embezzlement or theft against the Debtors and the
Reorganized Debtors; or (ii) a conviction of or guilty plea to a felony; or
(iii) excessive tardiness or absenteeism on the part of the Executive..
For the purposes of this Agreement, the term "Change of Control" shall mean
that High River Limited Partnership, a Delaware limited partnership, American
Real Estate Partnership, L.P., a Delaware limited partnership and Sky High, LLC
and/or their affiliates no longer collectively own or control directly or
indirectly, fifty percent (50%) of the First Mortgage Notes Due 2003 prior to
the Effective Date or fifty percent (50%) of the voting stock of Stratosphere
after the Effective Date. The term "affiliate" as used in this Agreement shall
have the same meanings as set forth in Section 12b-2 of the Securities Exchange
Act of 1934, as amended.
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6. Confidential Information. During the term of this Agreement and
thereafter, the Executive shall hold in a fiduciary capacity for the benefit of
the Debtors and the Reorganized Debtors all secret or confidential information,
knowledge or data relating to the Debtors and the Reorganized Debtors or their
affiliates, and their respective businesses, which shall not be public
knowledge. Notwithstanding the foregoing, the parties hereto acknowledge that
after the termination of his employment with the Debtors and/or the Reorganized
Debtors, the Executive may seek employment in the gaming industry and may be
employed by companies engaging in gaming both within and without the City of Las
Vegas, State of Nevada and the provisions of this paragraph are not intended to
restrict or impair the Executive in utilizing his skills and expertise in any
future employment.
7. Governing Law. This Agreement shall be construed and governed by the
laws of the State of Nevada, and any action between the parties shall be
maintained only within the applicable state or federal court located in Xxxxx
County, Nevada.
8. Assignability; Binding Effect. This Agreement is personal to each of the
parties hereto, and neither party may assign or delegate any of its rights or
obligations hereunder without first obtaining the written consent of the other
party. This Agreement shall be binding upon, and inure to the benefit of, the
parties and their respective heirs, executors, legal representatives, successors
and assigns.
9. Enforceability. If any of the provisions contained in this Agreement,
for any reason and to any extent, are construed to be invalid or unenforceable,
the remainder of this Agreement, and the application of the remaining covenants
to other persons or circumstances, shall not be affected thereby, but rather
shall be enforced to the greatest extent permitted by law.
10. Entire Agreement; Amendment. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended, waived, changed, modified or discharged
except by an instrument in writing executed by or on behalf to the party or
parties against whom any amendment, waiver, change, modification or discharge is
sought to be enforced.
11. Notices. Notices to or for the respective parties shall be given in
writing and delivered in person or mailed by certified or registered mail,
addressed to the respective party at the address as set out below, or at such
other address as either party may elect to provide in advance in writing, to the
other party:
The Executive: Xxxxxx X. Xxxxxxx
_____________________________
_____________________________
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The Corporation: Stratosphere Corporation
0000 X. Xxx Xxxxx Xxxx.
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
with a copy to: Xxxxxx & Silver, Ltd.
0000 Xxxxxx Xxxxxx Xxxxxxx
00xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
12. Cumulative Effect; No Waiver. The several rights and remedies provided
for in this Agreement shall be construed as being cumulative, and no one of them
shall be deemed to be exclusive of the others or of any right or remedy allowed
by law. No waiver by the Corporation or the Executive of any failure by the
Executive or the Corporation, respectively, to keep or perform any provision of
this Agreement shall be deemed to be a waiver of any proceeding or succeeding
breach of the same or other provision.
Intending to be legally bound, the parties hereto have executed this
Agreement as of the date above first written.
EXECUTIVE: DEBTORS:
Stratosphere Corporation, a Delaware
_______________________________________ corporation
Xxxxxx X. Xxxxxxx
By:__________________________________
Xxxxxx X. Xxxxxx, President
Stratosphere Gaming Corp.,
a Nevada corporation
By:__________________________________
Xxxxxx X. Xxxxxx, President
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