EXECUTIVE EMPLOYMENT AGREEMENT
AMERISTAR CASINOS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement is made and entered into
this 10th day of May, 1999, by and between XXXXXXX X. XXXXXXXX
("Employee") and AMERISTAR CASINOS, INC. ("Company"), a Nevada
corporation.
WHEREAS, the Company has offered and the Employee has
accepted a position of employment as CORPORATE SENIOR VICE
PRESIDENT OF DEVELOPMENT;
NOW, THEREFORE, for good and valuable consideration and in
consideration of the mutual promises and mutual covenants
contained herein, Company and Employee agree as follows:
1. EMPLOYMENT TERM
This is a one (1) year Agreement commencing as of the 10th
day of May, 1999, and continuing for one (1) year until the 9th
day of May, 2000, unless terminated as hereinafter provided in
Paragraphs 6-9. This Agreement will include a six (6) month
severance package if terminated involuntarily without cause.
This Agreement shall automatically renew from year to year unless
either party gives written notice of their desire to terminate
the Agreement thirty days prior to the expiration of the then-
present term.
As required by the Nevada Gaming Control Board and pursuant
to Ameristar Casinos, Inc. Compliance Program, Employee is
advised that this employment offer is subject to the satisfactory
completion of an investigative process.
2. DUTIES
Employee will perform the duties of the Corporate Senior
Vice President of Development in accordance with the Company's
bylaws and will perform such other duties and services as, from
time to time, are required by the Company's Corporate Management
Team. Employee will become an officer of Ameristar Casinos,
Inc..
3. OTHER SERVICES AND ACTIVITIES
Employee will devote substantially all of his or her efforts
to the Company's business. During the term of this Agreement,
Employee will not engage in any other employment or business
activity or hold any office or position in other companies or
organizations that would pose a conflict of interest with the
Company's business. Employee will obtain the express written
consent of the Company's Corporate Management Team before
engaging in any such activity.
4. COMPENSATION AND BENEFITS
Employee will be paid an annual salary of Two Hundred
Thousand Dollars ($200,000.00), payable in bi-weekly installments
of Seven Thousand Six Hundred Ninety Two Dollars and 31/100th
Dollars ($7,692.31). Upon Employee's hire date, Company will pay
Employee a sign-on bonus of $15,000.00 less applicable taxes. If
Employee voluntarily terminates his/her employment within one (1)
year of Employee's hire date, immediate reimbursement of the sign-
on bonus is required.
Employee shall also receive 60,000 stock options with a unit
value to be determined by the Board of Directors' Compensation
Committee. The vesting schedule for all stock options will be
five (5) years at the rate of 20% each year.
All subsequent salary increases and/or discretionary
incentive bonuses will be based on Employee's merit performance
and the Company's financial performance in accordance with
Company policy. For Employee's annual discretionary incentive
bonus, Employee will be eligible for up to 35% of Employee's
annual base salary.
Employee will be eligible to participate in the Company's
401 (K) Plan in accordance with the Plan's guidelines.
On the first day of employment, Employee will be eligible to
enroll in the Company's Group Health Benefits Program in
accordance with the Program's guidelines. In addition, Employee
will be enrolled in the Company's Exec-U-Care Program in
accordance with the Program's guidelines.
In accordance with Company policy, Employee will receive
food and beverage complimentary privileges for business and
personal use.
In accordance with Company policy, Employee will be eligible
for complimentary use of the Company's condominiums in Sun
Valley, Idaho.
5. ILLNESS OR DISABILITY OF EMPLOYEE
If Employee is unable to perform services for the Company
for a period of more than 90 days, Company may terminate this
Agreement upon not less than 30 days written notice to the
Employee. In the event of such termination, all of the Company's
obligations hereunder will terminate immediately.
6. DEATH OF EMPLOYEE
This Agreement will terminate immediately upon the death of
the Employee. If Employee dies during the term of this
Agreement, Company will pay to Employee's estate the compensation
that would otherwise be payable to Employee through the end of
the month of Employee's death.
7. TERMINATION FOR CAUSE
Company may terminate this Agreement and all of its
obligations hereunder upon occurrence of any of the following
events: (a) Employee's material breach of this Agreement; (b)
Employee's gross negligence or willful misperformance of his or
her duties; (c) Employee's conviction of a felony or any other
crime involving moral turpitude or dishonesty which, in the good
faith opinion of the Company, would impair Employee's ability to
perform his or her duties or the Company's business reputation;
(d) Employee's failure or refusal to comply with Company
policies, standards or regulations; (e) Employee's unauthorized
disclosure of Company trade secrets and other confidential
business information; (f) Employee's unsatisfactory job
performance; (g) Employee's breach of his or her duty of loyalty;
or (h) Employee's act of fraud, misrepresentation, theft or
embezzlement or the misappropriation of corporate assets.
8. TERMINATION WITHOUT CAUSE
SHOULD THE COMPANY TERMINATE EMPLOYEE WITHOUT CAUSE DURING
THE TERM OF THE AGREEMENT, THE TOTAL AMOUNT OWING OF
COMPENSATION, BENEFITS, AND WAGES SHALL BE SIX MONTHS' WORTH OF
EMPLOYEE'S ANNUAL SALARY AT THE TIME OF TERMINATION. NO OTHER
COMPENSATION, BENEFITS, OR WAGES WILL BE DUE AND OWING TO
EMPLOYEE.
9. COVENANT NOT TO COMPETE
If Employee voluntarily terminates employment with Company
before the expiration of any employment contract, Employee is
subject to a "non-compete" clause in companies that operate
casinos for one (1) year from the date of Employee's voluntary
termination. This non-compete clause will cover properties in
the Las Vegas area.
The parties agree that the restrictions and limitations
contained in this Paragraph are reasonable as to scope and
duration and are necessary to protect the Company's interests and
to preserve for the Company the competitive advantage derived
from maintaining such information as secret. In the event that
any of the restrictions and limitations contained in this
Paragraph are deemed to exceed the time or geographic limitations
permitted by Nevada law, then such provisions of this Paragraph
shall be reformed to the maximum time and geographical
limitations permitted by Nevada law.
10. CONFIDENTIAL INFORMATION
Employee agrees that he/she will not use or disclose
(directly or indirectly) any Confidential Information and Trade
Secrets of the Company whether in written, verbal, or model form,
at any time or in any manner, except as required and authorized
by the Company in the course of employment with the Company. The
obligations of this Agreement are continuing and survive the
termination of Employee's employment relationship with the
Company. Employee acknowledges and agrees that such trade
secrets and other confidential information constitute the
Company's sole and exclusive property. For purposes of this
Paragraph, the term "confidential information and trade secrets"
refers to any information that is not generally known to persons
engaged in business similar to that conducted or contemplated by
the Company and includes,
without limitation: know how, trade secrets, business
plans, copyrights, inventions, patents, intellectual property,
data, process, process parameters, methods, practices, products,
product design information, research and development data,
financial records, operational manuals, pricing, technical plans,
computer programs, customer information, customer lists, price
lists, supplier lists, marketing plans, financial information,
and/or all other compilations of information which relate to the
business of the Company, and any other propriety material of the
Company, which have not been released by the Company to the
general public.
Upon termination of his or her employment, Employee shall
turn over to the Company the originals, plus all copies, of any
and all files, Rolodex cards, phone books, papers, notes, price
lists, customer contracts, bids, customer lists, files,
notebooks, books, memoranda, drawings, or other documents made,
compiled by or delivered to him/her concerning any customer
served by the Company or any product, apparatus, or process
manufactured, used, developed or investigated by the Company or
containing any Confidential Information or Trade Secrets or
otherwise relating to Employee's performance of duties under this
Agreement. Employee further acknowledges and agrees that all
such documents are the Company's sole and exclusive property.
11. INDEMNIFICATION
Employee will keep, save, protect, defend, indemnify and
hold Company harmless from and against any and all costs, claims,
expenses, damages, or deficiencies resulting from any
misrepresentation, breach, default or non-fulfillment of any
agreement or covenant set forth in this Agreement.
12. BREACH OF THE AGREEMENT
In the event of any claimed breach of this Agreement, the
party claimed to have committed the breach will be entitled to
written notice of the alleged breach and a period of 10 days in
which to remedy such breach. Employee acknowledges and agrees
that a breach of any of the covenants contained in this Agreement
will result in irreparable and continuing harm to the Company for
which there will be no adequate remedy at law. The Company will
be entitled to preliminary and permanent injunctive relief to
restrain Employee from violating the terms and conditions of this
Agreement in addition to other valuable remedies, at law and in
equity.
13. DISPUTE RESOLUTION
Except for a claim by either Employee or Company for
injunctive relief, any dispute or difference of opinion between
Employee and Company involving the meaning, interpretation, and
application of any provision of this Agreement shall be adjusted
exclusively through binding arbitration pursuant to the National
Rules for the Resolution of Employment Disputes. The arbitrator
shall have no authority, jurisdiction, or power to amend, modify,
nullify, or add to the provisions of this Agreement. The
arbitrator shall have no authority to award noneconomic damages
or punitive damages except where such relief is specifically
authorized by an applicable state or federal statute which
creates a cause of action in the employment context. In such a
situation, the arbitrator shall specify in his or her award the
specific statute under which he or she
has granted such relief. Costs shall be awarded to the
prevailing party by the arbitrator. Each party shall pay their
own attorney's fees. No request to arbitrate will be entertained
or processed unless it is received in writing by either party to
this Agreement within thirty (30) calendar days after the
occurrence of the event giving rise to the dispute. In the event
a request to arbitrate is made by a party, the parties to this
Agreement hereby agree to select an arbitrator from the following
list by mutual strike:
Xxxxxx X. XxXxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx
Xxx Xxxxxx
Xxxx Xxxxxxxx
Xxxxxxxx Silver
In the event that none of these designated arbitrators may serve,
the parties agree to have the Las Vegas office of the American
Arbitration Association furnish them a panel of seven (7)
arbitrators all of whom are members of the National Academy of
Arbitrators and who reside in Southern California or Southern
Nevada from which an arbitrator shall be selected between the
parties by mutual strike.
14. NOTICES
Any notice required or desired to be given under this
Agreement by either party to the other shall be in writing and
may be effected by personal delivery or by registered or
certified mail at the addresses listed below or at such other
addresses as either party may notify the other:
A. If to the Company, to: Corporate Vice President of Human
Resources, or designee
Ameristar Casinos, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000X
Xxx Xxxxx, Xxxxxx 00000
B. If to the Employee, to: 0000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxxx, XX 00000
Notices personally delivered will be deemed effective upon
receipt. Notices sent by registered or certified mail will be
deemed effective three (3) days after mailing.
15. ENFORCEMENT
This Agreement shall be construed in accordance with and
governed for all purposes by the laws of the State of Nevada. In
case any one or more provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been
contained herein. If moreover, any one or more of the provisions
contained in this Agreement shall for any reason be held to be
excessively broad as to time, duration, geographical scope,
activity or subject, it shall be construed, by limiting and
reducing it, so as to be enforceable to the maximum extent
compatible with the applicable law as it shall then appear.
16. AMENDMENTS
This Agreement may be amended or modified only by a writing
executed and agreed upon by both parties.
17. WAIVER
Waiver by either party of any term or condition of this
Agreement or any breach hereof will not operate or be construed
as a waiver of any other term or condition or subsequent breach.
No waiver shall be binding unless executed in writing by the
parties making the waiver.
18. ASSIGNMENT
Employee acknowledges that his or her services are unique
and personal and, accordingly, that Employee may not assign his
or her rights or delegate his or her duties and obligations under
this Agreement. The Company's rights and obligations under this
Agreement will inure to the benefit of, and be binding upon, the
Company's successors and assigns.
19. MERGER
This Agreement constitutes the entire agreement of the
parties and supersedes all prior agreements, arrangements and
communications between the parties, whether oral or written.
20. HEADINGS
The headings of the Paragraphs of this Agreement are for
convenience only and shall not affect the construction or
interpretation of any of its provisions.
21. REVIEW/UNDERSTANDING OF AGREEMENT
Each party to this Agreement has reviewed the Agreement with
legal counsel of their choice and has had the opportunity to
modify or eliminate any ambiguous provisions. Therefore, it is
agreed that each party hereto is considered a drafter of this
Agreement and that the contract interpretation rule which holds
ambiguities are to be interpreted against the original drafter of
a document is expressly waived by the parties
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts
conformed by facsimile signatures transmitted by telephone, each
of which shall be deemed a duplicate original.
COMPANY: EMPLOYEE:
BY: /s/ Xxxx X. Xxxx BY: /s/ Xxxxxxx X. Xxxxxxxx
ITS: Corp VP of Human Resources
DATE: June 14, 1999 DATE: June 14, 1999
