EMPLOYMENT AGREEMENT
EXHIBIT 10.1
This Employment Agreement ("Agreement")
is entered into as of April 3, 2009,
by and between The Majestic Star Casino, LLC ("Employer" or the “Company”) and
Xxxxxxx Xxxxxx ("Executive").
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1.
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Employment. Employer
hereby employs Executive, and Executive hereby accepts employment by the
Employer, as Executive Vice President and Chief Operating Officer for the
Company, 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 (defined
below).
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2.
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Effective Date;
Specified Term. Except as otherwise provided herein,
this Agreement shall be effective as of April 3, 2009 (“Effective
Date”). Subject to earlier termination as provided herein, the
Company shall retain Executive and Executive shall serve in the employ of
the Employer for a period commencing at the Effective Date and extending
through and including May 1, 2010 ("Specified Term"). If either
party to this Agreement chooses not to renew or extend the terms and
conditions of this Agreement, which renewal or extension shall be set
forth in writing, but Executive remains employed after the Specified Term,
then Executive’s employment with Employer may continue on an at-will basis
and no paragraph, section, duty or obligation appearing in this Agreement
shall be binding on the parties except paragraphs 6, 7, 8, 9, 14, 15, 16,
17, 18, 19, 20, 21 and 23.
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3.
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Compensation.
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a.
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Base
Salary. From January 1,
2009 through the end of the Specified Term, in
consideration of the performance by Executive of Executive's obligations
hereunder to Employer, Employer shall pay Executive an annual base salary
("Base Salary") of Four Hundred Thousand Dollars
($400,000). The Base Salary shall be payable in accordance with
the payroll practices of Employer as in effect from time to time for
Employer's executives. The Base Salary shall be reviewed
annually, exclusively by Employer, and any increase thereto shall be in
Employer’s sole discretion.
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b.
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Bonus
Compensation. Executive shall be
entitled to participate in Employer’s discretionary bonus or incentive
plan as formulated from time to time by Employer’s Board of Directors in
its sole and absolute discretion. Such program is primarily
based on achievement of EBITDA goals and Executive's
performance. The target bonus for Executive will be forty
percent (40%) of the actual Base Salary paid to Executive during the bonus
plan year, and based on the Employer's bonus program in effect at that
time ("Bonus Compensation"). Should the Company adopt an Executive
Incentive Plan and Executive elects to participate in such plan, Executive
must waive in writing any right he may have to Bonus Compensation for 2009
pursuant to the discretionary bonus
plan.
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c.
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Executive Benefit
Programs. From January 1, 2009 through the end of the
Specified Term, Executive shall be entitled to participate in all of
Employer's benefit plans ("Plans") as are generally made available from
time-to-time to Employer's executives, subject to the terms and conditions
of such plans, and subject to Employer's right to amend, terminate, or
take other similar actions with respect to such plans. To the
extent such Plans include life insurance, the Company agrees to provide
life insurance on terms and conditions no less favorable than similarly
situated executives. Executive shall receive a maximum reimbursement of
five thousand dollars ($5,000.00) per calendar year for unreimbursed
medically necessary expenses incurred in the same calendar year and
submitted in accordance with Employer’s expense reimbursement
procedures.
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d.
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Business Expense
Reimbursements. Pursuant to Employer’s expense
reimbursement policies then in effect, and upon timely submission of
appropriate documentation to Employer, Employer shall pay or reimburse
Executive for all reasonable out-of-pocket expenses, including travel and
training, Executive incurs from January 1, 2009 through the end of the
Specified Term in the course of performing Executive's duties under this
Agreement.
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e.
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Vacation. As
of the January 1, 2009, Executive shall be entitled to vacation as
outlined in the prevailing Corporate Policy Manual for Corporate
Executives.
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4.
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Extent of
Services. Executive agrees
that the duties and services to be performed by Executive shall be
performed exclusively for Employer. Executive further agrees to
perform such duties in an efficient, trustworthy, lawful, and businesslike
manner. Executive agrees not to render to others any service of
any kind whether or not for compensation, or to engage in any other
business activity whether or not for compensation, that is similar to
or conflicts with the performance of Executive's duties under this
Agreement, without the prior written approval of Employer’s President and
Chief Executive Officer.
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5.
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Policies and
Procedures. In addition to the terms herein, Executive
agrees to be bound by Employer's policies and procedures, including drug
testing and background checks, as may be established or amended by
Employer in its sole discretion from time to time. In the event
the terms in this Agreement conflict with Employer's policies and
procedures, the terms herein shall take
precedence.
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6.
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Licensing
Requirements. Executive acknowledges that Employer is
engaged in a business that is or may be subject to and exists because of
privileged licenses issued by governmental authorities in various
jurisdictions in which Employer and its parents, subsidiaries, affiliates,
and joint ventures (collectively “Employer Group”) are engaged in or have
applied to engage in, or during the Specified Term, may apply to engage in
business. Executive shall apply for and obtain any license,
qualification, clearance, or approval that shall be requested or required
of Executive by any regulatory
authority
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having
jurisdiction over Employer or Employer Group. Additionally, Executive
shall timely prepare and submit to Employer all background information forms and
other documents required pursuant to Employer’s Gaming Compliance
Program. Any and all costs associated with license qualifications,
clearances or approvals shall be paid by the Employer.
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7.
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Failure to Satisfy
Licensing Requirement. If Executive fails to satisfy any
licensing requirement referred to in paragraph 6 above, or if any
governmental authority directs the Employer to terminate any relationship
it may have with Executive, or if Employer shall determine, in Employer's
sole and exclusive judgment, that Executive was, is or might be involved
in, or is about to be involved in, any activity, relationship(s) or
circumstance that could or does jeopardize the business of Employer or
Employer's Group, their reputation or such licenses, or if any such
license is threatened to be, or is, denied, curtailed, suspended or
revoked, this Agreement may be terminated by Employer and the parties'
obligations and responsibilities shall be determined by the provisions of
paragraph 11(a).
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8.
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Restrictive
Covenants.
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a.
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Competition.
Executive acknowledges that, in the course of Executive's responsibilities
hereunder, Executive will form relationships and become acquainted with
certain confidential and proprietary information as further described
herein. Executive further acknowledges that such relationships and
information are and will remain valuable to the Employer and Employer
Group and that the restrictions on future employment as set forth herein
are reasonably necessary in order for Employer and Employer Group to
remain competitive in the gaming industry. Executive agrees that during
the period of his/her employment with the Company and for the twelve (12)
month period following termination or expiration of his employment with
the Company for whatever reason he will not become a stockholder,
director, officer, employee or agent of or consultant to any corporation,
partnership or other entity or engage in any business as a sole proprietor
in or act as a consultant to any such entity or otherwise engage, directly
or indirectly, in any enterprise, in each case which competes with or has
a vendor relationship with any business or activity (“Competitor”) engaged
in, or known by Executive to be contemplated to be engaged in, by the
Company or the Employer Group in any county in which the Company or the
Employer Group has gaming operations; provided, that if applicable,
restrictions regarding the state of Nevada shall be limited to those
Competitors who have a presence located on Fremont Street between Main
Street and Las Vegas Boulevard. Competition shall not include the
ownership (solely as an investor and without any other participation in or
contact with the management of the business) of less than one percent of
the outstanding shares of stock of any corporation engaged in any such
business, which shares are regularly traded on a national securities
exchange or in an over-the-counter market. The Company, in its
sole discretion, may waive one or more of the restrictions set forth in
this subparagraph; however, any such waiver must be in writing executed by
an authorized Company representative, and shall be effective only to the
extent it is set forth in writing. In the event Company
agrees
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to waive
one or more of the restrictions in this subparagraph, Executive shall not be
entitled to compensation, if any is due, for the period waived.
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b.
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Non-solicitation-Customers: During
and for twenty-four (24) months after Executive’s employment with
Employer, the Executive covenants not
to:
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i.
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Make
known to any third party or use other than in the performance of his/her
duties the names and addresses of any of the customers of Employer or any
member of Employer Group, or any other information or data pertaining to
those customers;
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ii.
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Call
on, solicit, induce to leave and/or take away, or attempt to call on,
solicit, induce to leave and/or take away, any of the customers of
Employer or Employer Group, either for Executive's own account or for any
third party; or
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iii.
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Call
on, solicit and/or take away any potential or prospective customer of
Employer or Employer Group, on whom the Executive called or with whom
Executive became acquainted during employment (either before or during the
Specified Term), either for Executive's own account or for any third
party.
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c.
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Non-Solicitation-Employees
and Independent Contractors. For the twelve (12)
month period immediately following termination of Executive’s employment
with Employer for any reason whatsoever, Executive covenants not to
approach or solicit any employee or independent contractor of Employer or
any member of the Employer Group with a view towards enticing such person
to leave the employ or service of Employer or any member of the Employer
Group, or hire or contract with any employee or independent contractor of
Employer or any member of the Employer Group, without the prior written
consent of the Employer, such consent to be within Employer's sole and
absolute discretion.
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d.
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Confidentiality. Executive
covenants and agrees that Executive shall not at any time during the
Specified Term or thereafter, without Employer's prior written consent,
such consent to be within Employer's sole and absolute discretion,
disclose or make known to any person or entity outside the Employer Group
any Trade Secret (as defined below), or proprietary or other confidential
information, in any form, concerning Employer or any member of the
Employer Group, including without limitation, Employer's customers,
its casino, hotel, and marketing practices and procedures, management and
employment practices, procedures and policies, or any other information
regarding Employer or any member of the Employer Group, which is not
already and generally known to the public through no wrongful act of
Executive or any other party. Executive covenants and agrees
that Executive shall not at any time during the Specified Term or
thereafter, without the Employer's prior written consent, utilize any such
Trade Secrets, proprietary or confidential information in any way other
than in
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connection
with Executive’s employment hereunder. For purposes of this Agreement, Trade
Secrets is defined as data or information, including a formula, pattern,
compilation, program, device, method, know-how, technique or process, that
derives any economic value, present or potential, from not being generally known
to, and not being readily ascertainable by proper means by, other persons who
may or could obtain any economic value from its disclosure or use.
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e.
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Third Party
Information. Executive acknowledges that Employer and
other members of the Employer Group have received and in the future will
receive from third parties their confidential or proprietary information
subject to a duty to maintain the confidentiality of such information and
to use it only for certain limited purposes. Executive shall
hold all such confidential or proprietary information in the strictest
confidence and will not disclose it to any person or entity or use it
except as necessary in carrying out Executive's duties hereunder
consistent with Employer's (or such other member of the Employer Group's)
agreement with such third party.
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f.
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Employer's
Property. Executive hereby confirms that Trade Secrets,
proprietary or confidential information and all information concerning
Employer or Employer Group’s customers, goods, services or facilities
owned, operated or managed by Employer constitute Employer's exclusive
property (regardless of whether Executive possessed or claims to have
possessed such information prior to the date hereof). Executive
agrees that upon termination of employment, Executive shall promptly
return to Employer all documents, papers, notes, notebooks,
memoranda, computer disks, and any other similar repositories of
information (regardless of whether Executive possessed such information
prior to the date hereof) containing or relating in any way to the Trade
Secrets or proprietary or confidential information of each member of the
Employer Group, including but not limited to, the documents referred to in
paragraph 8(d). Such repositories of information also include
but are not limited to any so-called personal files or other personal data
compilations in any form, which in any manner contain any Trade Secrets or
proprietary or confidential information of Employer or any member of the
Employer Group.
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g.
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Notice to
Employer. Executive agrees to notify Employer
immediately of any entity or person for whom Executive works or provides
services (whether or not for remuneration to Executive or a third party)
during the Specified Term and within the non-competition period specified
in paragraph 8.a. above.
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9.
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Representations. Executive hereby
represents, warrants and agrees with Employer
that:
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a.
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The
covenants and agreements contained in paragraphs 4 and 8 above are
reasonable, appropriate and suitable in their geographic scope, duration
and content; Employer's agreement to employ the Executive and a portion of
the compensation and consideration to be paid to Executive hereunder is
separate and partial consideration for such covenants and agreements;
Executive shall not,
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directly
or indirectly, raise any issue of the reasonableness, appropriateness and
suitability of the geographic scope, duration or content of such covenants and
agreements in any proceeding to enforce such covenants and agreements; and such covenants and
agreements shall survive the termination of this Agreement, in accordance
with their terms;
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b.
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The
enforcement of any remedy under this Agreement will not prevent Executive
from earning a livelihood, because Executive's past work history and
abilities are such that Executive can reasonably expect to find work in
other areas and lines of business;
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c.
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The
covenants and agreements stated in paragraphs 4 and 8 above are essential
for the Employer's reasonable
protection;
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d.
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Employer
has reasonably relied on these covenants and agreements by
Executive;
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e.
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Executive
has the full right to enter into this Agreement, and entering into and
performance of this Agreement will not violate or conflict with any
arrangements or agreements Executive may have or agreed to have with any
other person or entity; and
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f.
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Executive
acknowledges and warrants to Employer the receipt and sufficiency of
separate consideration for the assignment by Employer of Employer's rights
and Executive's obligation under paragraph
8.
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Notwithstanding
paragraph 20, Executive agrees that in the event of Executive's breach or
threatened breach of any covenants and agreements set forth in paragraphs 4 and
8 above, Employer may seek to enforce such covenants and agreements in court
through any equitable remedy, including specific performance or injunction,
without waiving any claim for damages. In any such event, Executive
waives any claim that the Employer has an adequate remedy at law or for the
posting of a bond.
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10.
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Termination for
Death. Executive's employment hereunder shall terminate
upon Executive's death. In the event of Executive's death,
Executive (or Executive's estate) shall have no right to
receive any compensation or benefit hereunder or otherwise from Employer
or any member of the Employer Group on and after the effective date of
termination of employment other than: (1) unpaid Base Salary earned to the
date of termination of employment (which shall be paid on Employer's next
scheduled payroll date); (2) any discretionary Bonus Compensation that may
be paid in accordance with Employer’s discretionary bonus plan then in
effect; (3) business expense reimbursement pursuant to paragraph 3(d); (4)
benefits provided pursuant to paragraph 3(c), subject to the terms and
conditions applicable thereto; (5) payment of a lump sum amount equal to
the equivalent of sixty (60) days Base Salary within ninety (90) days
following Executive’s death; and (6) payment by the Company of the full
cost for COBRA coverage on behalf of the Executive’s COBRA beneficiaries
for the first twelve months of COBRA
coverage.
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11.
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Termination by
Employer
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a.
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For
Cause. Employer may terminate Executive's employment
hereunder for Cause (as defined below) at any time. If Employer terminates
Executive's employment for Cause, Executive shall have no right to receive
any compensation or benefits hereunder or otherwise from Employer or any
member of the Employer Group on and after the effective date of
termination of employment other than: (1) unpaid Base
Salary earned to the date of termination of employment (which shall be
paid on Employer's next scheduled payroll date); (2) business expense
reimbursement pursuant to paragraph 3(d); and, (3) benefits provided
pursuant to paragraph 3(c), subject to the terms and conditions applicable
thereto. For purposes of this paragraph 11, “Cause” is defined as
Executive's: (i) failure to abide by Employer’s policies and
procedures; (ii) misconduct, gross negligence, insubordination, or
inattention to Employer’s business; (iii) failure to perform the duties
required of Executive up to the standards established by the President and
Chief Executive Officer or other material breach of this Agreement,
including the duty to implement cost savings and revenue generation
initiatives as directed by the President and Chief Executive Officer; or
(iv) failure or inability to satisfy the requirements stated in paragraphs
6 and 8 above. Should Employer believe that cause exists to
terminate Executive, Employer agrees to provide written notice to
Executive of the specific items identified as cause and afford Executive a
period of thirty (30) business days from receipt of the written notice to
remedy the deficiencies to Employer's satisfaction. If, at the
conclusion of the cure period, Employer determines Executive has not
satisfactorily remedied the deficiency, Employer shall notify Executive
who shall be immediately terminated. Nothing in this paragraph
11 precludes Employer from immediately terminating Executive's employment
if Executive is convicted of felonious criminal conduct; physically
aggressive conduct toward any co-worker, patron, vendor or customer of
Employer; illegal drug use; or based upon any gaming authority's demand
that Employer do so.
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b.
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Without
Cause. Employer may terminate Executive at any time
during the Specified Term upon thirty (30) days’ written notice, or, in
the Employer’s sole discretion, pay Executive the equivalent of thirty
(30) days’ Base Salary in lieu of notice upon termination. In
addition to any amount due in lieu of notice, should Employer terminate
Executive’s employment without cause, then Executive shall have no right
to receive any compensation or benefits hereunder or otherwise from
Employer or any member of the Employer Group on or after the effective
date of termination of employment other than: (1) unpaid Base
Salary earned to the date of termination of employment; (2) payment of a
lump sum amount equal to twelve (12) months’ Base Salary within ninety
(90) days following Executive’s termination; (3) any discretionary Bonus
Compensation that may be paid in accordance with Employer’s discretionary
bonus plan then in effect; (4) business expense reimbursement pursuant to
paragraph 3(d); (5) benefits provided
pursuant
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to
paragraph 3(c), subject to the terms and conditions applicable thereto; and (6)
payment by the Company of the full cost for COBRA coverage on behalf of the
Executive and his COBRA beneficiaries for the first twelve (12) months of COBRA
coverage.
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12.
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Termination By
Executive
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a.
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For Good
Reason. Executive may terminate Executive's employment
hereunder for Good Reason upon thirty (30) days prior written notice to
Employer. “Good Reason” shall mean: (a) failure of
Employer to pay Executive's compensation when due; (b) material reductions
in Executive's duties and responsibilities without Executive’s
consent; or (c) following a Change in Control provided that Executive
exercises such right to terminate pursuant to this paragraph 12(a)(c)
within thirty (30) days after a Change in Control. "Change in Control"
means: (i) a sale, exchange or transfer of more than 50% of the
assets or earning power of the Company on a consolidated basis or more
than 50% of its ownership; (ii) a merger or consolidation of the Company
(excluding merger or consolidation where the voting securities of the
Company prior to the merger or consolidation continue to represent more
than 50% of the combined voting power of the surviving entity after the
merger or consolidation); (iii) any reorganization, reverse stock split or
recapitalization that would result in a change in control; (iv) any
liquidation or dissolution of the Company; or, (v) any transactions or
series of related transactions having the same effect as a Change in
Control. Should Executive terminate for Good Reason, Executive
shall be entitled to: (1) unpaid Base Salary earned to the date
of termination of employment; (2) payment of a lump sum amount equal to
twelve (12) months’ Base Salary within ninety (90) days following
Executive’s termination; (3) any Bonus Compensation earned as determined
by and consistent with Employer's bonus program then in effect prorated
for the period of employment during the applicable bonus period; (4)
business expense reimbursement pursuant to paragraph 3(d); (5) benefits
provided pursuant to paragraph 3(c), subject to the terms and conditions
applicable thereto; and (6) payment by the Company of the full cost for
COBRA coverage on behalf of the Executive and his COBRA beneficiaries for
the first twelve (12) months of COBRA coverage. Good Reason
shall not exist unless Executive first provides the President and Chief
Executive Officer with written notice of the facts alleged to constitute
Good Reason and until such breach, reduction or requirement remains
uncured for thirty (30) business days following the President and Chief
Executive Officer’s receipt of such written notice from Executive. The
thirty (30) business day cure period shall not apply to a Change in
Control.
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b.
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Without Good
Reason. Executive may terminate
his/her employment for any reason (including no reason) other
than Good Reason, death or disability, upon providing to Employer thirty
(30) days’ advance written notice of such termination. Should
Executive terminate his/her employment for a reason other than Good
Reason, death or disability, Executive shall have no right to receive any
compensation or benefit hereunder or otherwise from Employer or
any
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member of
the Employer Group on and after the effective date of termination other than:
(1) unpaid Base Salary earned to the date of termination of employment (which
shall be paid on Employer's next scheduled payroll date); (2) business expense
reimbursement pursuant to paragraph 3(d); and (3) benefits provided pursuant to
paragraph 3(c), subject to the terms and conditions applicable
thereto.
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13.
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Release; Full
Satisfaction. Notwithstanding anything to the contrary,
no payments or benefits shall be provided pursuant to paragraphs 11(b) and
12(a) unless and until Executive executes and delivers a standard form of
general release of claims, and such release has become irrevocable;
provided, however, that Executive shall not be required to release any
indemnification rights or continuing rights to benefits under Employer's
benefit plans, in accordance with the terms and conditions of such
plans.
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14.
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Cooperation Following
Termination. Following termination of Executive's
employment hereunder for any reason, Executive agrees to cooperate with
Employer upon the reasonable request of the Employer and to be reasonably
available to Employer with respect to matters arising out of Executive's
services. Employer shall reimburse, or at Executive's request,
advance Executive for expenses reasonably incurred in connection with such
matters.
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15.
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Interpretation; Each
Party the Drafter. Each of the parties was represented
by or had the opportunity to consult with counsel who either participated
in the formulation and documentation of, or was afforded the opportunity
to review and provide comments on, this Agreement. Accordingly, this
Agreement and the provisions contained in it shall not be construed or
interpreted for or against any party to this Agreement because that party
drafted or caused that party's legal representative to draft any of its
provisions.
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16.
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Severability. If
any provision hereof is unenforceable, illegal or invalid for any reason
whatsoever, such fact shall not affect the remaining provisions hereof,
except in the event a law or court decision, whether on application for
declaration, or preliminary injunction or upon final judgment, declares
one or more of the provisions of this Agreement that impose restrictions
on Executive unenforceable or invalid because of the geographic scope or
time duration of such restriction. In such event, Employer
shall have the option:
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(a) To
deem the invalidated restrictions retroactively modified to provide for the
maximum geographic scope and time duration that would make such provisions
enforceable and valid; or
(b) To
terminate this Agreement pursuant to paragraph 11(a) or 11(b), whichever is
applicable.
Exercise
of any of these options shall not affect Employer's right to seek damages or
such additional relief as may be allowed by law in respect to any breach by
Executive of the enforceable provisions of this Agreement.
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17.
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Notice. For
purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been
duly given: (i) when personally delivered; (ii) when delivered by
facsimile upon receipt of confirmation that the transmission was
successful; (iii) the business day following the day when deposited with a
reputable and established overnight express courier (charges prepaid); or
(iv) five (5) days following mailing by certified or registered mail,
postage prepaid and return receipt requested. Unless another
address is specified, notices shall be sent to the addresses indicated
below:
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To
Employer: With
a copy to its:
The Majestic Star Casino,
LLC
The Majestic Star Casino, LLCc/x Xxxxxx Development
Inc.
000 Xxxxxxx Xxx., Xxxxx
0000 000
Xxxxxxx Xxxxxx – 12th
Floor
Detroit,
MI
Xxx Xxxxx, Xxxxxx 00000
President and
CEO
Sr. V.P. of Human
Resources
Facsimile
#: (000)000-0000
Facsimile #: (000) 000-0000
To
Executive:
Xxxxxxx
Xxxxxx
0000 Xxx
Xxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
or to
such other address as either party shall have furnished to the other in writing
in accordance herewith.
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18.
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Tax
Withholding. Notwithstanding any other provision of this
Agreement, Employer may withhold from any amounts payable under this
Agreement, or any other benefits received pursuant hereto, such federal,
state, local and other taxes as shall be required to be
withheld under any applicable law or
regulation.
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19.
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Indemnification and Expense Reimbursement. The Company will indemnify Executive and advance or reimbursement reasonable expenses incurred by Executive in defending a proceeding for which indemnification is permitted to the fullest extent provided under the Company’s Operating Agreement as amended from time to time |
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20.
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Dispute
Resolution.
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a.
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Any
dispute, claim or controversy arising from or related in any way to this
Agreement or the interpretation, application, breach, termination or
validity thereof, including any claim of inducement of this Agreement by
fraud, or arising from or related in any way to Executive's employment
with Employer will be submitted for final resolution by private
arbitration before a single arbitrator
and
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in
accordance with the National Rules for the Resolution of Employment Disputes and
practices then in effect of the American Arbitration Association or any
successors thereto ("AAA"), except where those rules conflict with these
provisions, in which case these provisions control; provided, however, that
Employer shall have the right to seek in court equitable relief, including a
temporary restraining order, preliminary or permanent injunction or an
injunction in aid of arbitration, to enforce its rights set forth in paragraph
8. The arbitration shall be held in Las Vegas, Nevada.
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b.
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Giving
recognition to the understanding of the parties hereto that they
contemplate reasonable discovery, including document demands and
depositions, the arbitrator shall provide for discovery in accordance with
the Nevada Rules of Civil Procedure as reasonably applicable to this
private arbitration.
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c.
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To
the extent possible, the arbitration hearings and award will be maintained
in confidence, except as may be required by law or for the purpose of
enforcement of an arbitration
award.
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d.
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Each
party shall bear its own costs and expenses incurred in connection with
arbitration proceedings pursuant to this Agreement to arbitrate. To the
extent permitted by law, the costs and expenses of the arbitrator(s) and
related expenses shall be shared equally between Employer and
Executive.
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e.
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Each
party hereto waives, to the fullest extent permitted by law, any claim to
punitive, exemplary, liquidated, or multiplied damages from the
other.
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21.
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No Waiver of Breach or
Remedies. No failure or delay on the part of Employer or
Executive in exercising any right, power or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
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22.
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Amendment or
Modification. No amendment, modification, termination or
waiver of any provision of this Agreement shall be effective unless the
same shall be in writing and signed and approved by the Company’s
President and Chief Executive Officer and Executive, nor shall consent to
any departure by the Executive from any of the terms of this Agreement be
effective unless the same is signed by the Company’s President and Chief
Executive Officer. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
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23.
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Governing Law;
Venue. The laws of the State of Nevada shall govern the
validity, construction, and interpretation of this Agreement, without
regard to conflict of law principles. Each party irrevocably
submits to the exclusive jurisdiction of the courts of the State of Nevada
in any action, suit or proceeding of any kind arising out of or
relating
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to this
Agreement (including arbitration) or any matters contemplated hereby, and agrees
that any such action, suit or proceeding shall be brought only in such
court.
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24.
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Headings. The
headings in this Agreement have been included solely for convenience of
reference and shall not be considered in the interpretation or
construction of this Agreement.
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25.
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Assignment. This
Agreement is personal to Executive and Employer and may not be assigned by
either party without written consent from the other, which consent may be
withheld for any reason (including no
reason).
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26.
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Prior
Agreements. At the Effective Date, this Agreement shall
supersede and replace any and all other prior discussions and negotiations
as well as any and all agreements and arrangements that may have been
entered into by and between Employer or any predecessor thereof, on the
one hand, and Executive, on the other hand, prior to the Effective Date
relating to the subject matter hereof. Executive acknowledges
that all rights under such prior agreements and arrangements shall be
extinguished.
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IN WITNESS WHEREOF, Employer
and Executive have entered into this Agreement as of the date first written
above.
XXXXXXX XXXXXX
/s/ Xxxxxxx X. Xxxxxx
Signature
Date: 4/3/09
THE MAJESTIC STAR CASINO,
LLC
By: /s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Its: President
and Chief Executive Officer
Date: 4/3/09
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