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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as
of the 31st day of August, 2005, by and between XXXX LAS VEGAS, LLC
("Employer") and XXXXXX XXXXXX ("Employee").
W I T N E S S E T H:
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WHEREAS, Employer is a limited liability company duly organized and
existing under the laws of the State of Nevada, maintains its principal place
of business at 0000 Xxx Xxxxx Xxxx. Xxxxx, Xxx Xxxxx, Xxxxxx, and is engaged
in the business of operating a casino/hotel complex at 0000 Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx; and,
WHEREAS, Employee is a party to that certain Employment Agreement
dated as of August 1, 2003 (the "2003 Employment Agreement") with Wynn
Resorts, Limited ("WRL"), a affiliate of Employer;
WHEREAS, Employee and WRL have agreed to terminate the 2003
Employment Agreement in order to permit Employer and Employee to enter into
this Agreement;
WHEREAS, in furtherance of its business, Employer has need of
qualified, experienced executive management; and,
WHEREAS, Employee is an adult individual currently residing at 0000
Xxxxxx Xxxxxxx Xxxxx Xxx Xxxxx, Xxxxxx 00000; and,
WHEREAS, Employee has represented and warranted to Employer that
Employee possesses sufficient qualifications and expertise in order to fulfill
the terms of the employment stated in this Agreement; and,
WHEREAS, Employer is willing to employ Employee, and Employee is
desirous of accepting employment from Employer under the terms and pursuant to
the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing recitals,
and in consideration of the mutual covenants, agreements, understandings,
undertakings, representations, warranties and promises hereinafter set forth,
and intending to be legally bound thereby, Employer and Employee hereby
covenant and agree as follows:
1. DEFINITIONS. As used in this Agreement, the words and terms
hereinafter defined have the respective meanings ascribed to them herein,
unless a different meaning clearly appears from the context:
(a) "Affiliate" - means with respect to a specified Person,
any other Person who or which is (i) directly or indirectly
controlling, controlled by or under common control with the specified
Person, or (ii) any member, director, officer or manager of the
specified Person. For purposes of this definition, only, "control",
"controlling", and "controlled" mean the right to exercise, directly
or indirectly, more than fifty percent (50%) of the voting power of
the stockholders, members or owners and, with respect to any
individual, partnership, trust or other entity or association, the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of the controlled entity.
(b) "Anniversary" - means each anniversary date of the
Effective Date during the Term of this Agreement (as defined in
Paragraph 5 hereof).
(c) "Benefits Date" - means September 15, 2003.
(d) "Cause" - means
(i) the willful destruction by Employee of the
property of Employer or an Affiliate of Employer having a
material value to Employer or such Affiliate;
(ii) fraud, embezzlement, theft, or comparable
dishonest activity committed by Employee (excluding acts
involving a de minimis dollar value and not related to
Employer or an Affiliate of Employer);
(iii) Employee's conviction of or entering a plea of
guilty or nolo contendere to any crime constituting a felony
or any misdemeanor involving fraud, dishonesty or moral
turpitude (excluding acts involving a de minimis dollar
value and not related to Employer or an Affiliate of
Employer);
(iv) Employee's breach, neglect, refusal, or failure
to materially discharge his duties (other than due to
physical or mental illness) commensurate with his title and
function, or Employee's failure to comply with the lawful
directions of Employer's Board of Directors or the board of
directors of WRL, that is not cured within fifteen (15) days
after Employee has received written notice thereof from
either board;
(v) a willful and knowing material misrepresentation
to Employer's Board of Directors or and WRL's board of
directors;
(vi) a willful violation of a material policy of
Employer, which does or could result in material harm to
Employer or to Employer's reputation; or
(vii) Employee's material violation of a statutory or
common law duty of loyalty or fiduciary duty to Employer or
an Affiliate of Employer,
provided, however, that Employee's disability due to illness or
accident or any other mental or physical incapacity shall not
constitute "Cause" as defined herein.
(e) "Change of Control" - means the occurrence, after the
Effective Date, of any of the following events:
(i) any "Person" or "Group" (as such terms are
defined in Section 13(d) of the Securities Exchange Act of
1934 (the "Exchange Act") and the rules and regulations
promulgated thereunder), excluding any Excluded Stockholder,
is or becomes the "Beneficial Owner" (within the meaning of
Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of WRL, or of any entity resulting
from a merger or consolidation involving WRL, representing
more than fifty percent (50%) of the combined voting power
of the then outstanding securities of WRL or such entity;
(ii) the individuals who, as of the Effective Date,
are members of the WRL board of directors (the "Existing
Directors") cease, for any reason, to constitute more than
fifty percent (50%) of the number of authorized directors of
WRL as determined in the manner prescribed in WRL's Articles
of Incorporation and Bylaws; provided, however, that if the
election, or nomination for election, by WRL's stockholders
of any new director was approved by a vote of at least fifty
percent (50%) of the Existing Directors, such new director
shall be considered an Existing Director; provided further,
however, that no individual shall be considered an Existing
Director if such individual initially assumed office as a
result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
by or on behalf of anyone other than the WRL board of
directors (a "Proxy Contest"), including by reason of any
agreement intended to avoid or settle any Election Contest
or Proxy Contest; or
(iii) the consummation of (x) a merger, consolidation
or reorganization to which Employer is a party, whether or
not Employer is the Person surviving or resulting therefrom,
or (y) a sale, assignment, lease, conveyance or other
disposition of all or substantially all of the assets of
Employer, in one transaction or a series of related
transactions, to any Person other than Employer, where any
such transaction or series of related transactions as is
referred to in clause (x) or clause (y) above in this
subparagraph (iii) (singly or collectively, a "Transaction")
does not otherwise result in a "Change of Control" pursuant
to subparagraph (i) of this definition of "Change of
Control"; provided, however, that no such Transaction shall
constitute a "Change of Control" under this subparagraph
(iii) if the Persons who were the stockholders of Employer
immediately before the consummation of such Transaction are
the Beneficial Owners, immediately following the
consummation of such Transaction, of fifty percent (50%) or
more of the combined voting power of the then outstanding
voting securities of the Person surviving or resulting from
any merger, consolidation or reorganization referred to in
clause (x) above in this subparagraph (iii) or the Person to
whom the assets of Employer are sold, assigned, leased,
conveyed or disposed of in any transaction or series of
related transactions referred in clause (y) above in this
subparagraph (iii), in substantially the same proportions in
which such Beneficial Owners held voting stock in Employer
immediately before such Transaction.
For purposes of the foregoing definition of "Change of Control," the
term "Excluded Stockholder" means Xxxxxxx X. Xxxx, the spouse,
siblings, children, grandchildren or great grandchildren of Xxxxxxx
X. Xxxx, any trust primarily for the benefit of the foregoing
persons, or any Affiliate of any of the foregoing persons.
(f) "Complete Disability" - means the inability of Employee,
due to illness or accident or other mental or physical incapacity, to
perform his obligations under this Agreement for a period as defined
by Employer's disability plan or plans.
(g) "Confidential Information" - means any information that
is possessed or developed by or for Employer or its Affiliate and
which relates to the Employer's or Affiliate's business or
technology, which is not generally known to the public or to persons
engaged in business similar to that conducted or contemplated by
Employer or Affiliate, or which Employer or Affiliate seeks to
protect from disclosure to its existing or potential competitors or
others, and includes without limitation know how, business and
technical plans, strategies, existing and proposed bids, costs,
technical developments, purchasing history, existing and proposed
research projects, copyrights, inventions, patents, intellectual
property, data, process, process parameters, methods, practices,
products, product design information, research and development data,
financial records, operational manuals, pricing and price lists,
computer programs and information stored or developed for use in or
with computers, customer information, customer lists, supplier lists,
marketing plans, financial information, financial or business
projections, and all other compilations of information which relate
to the business of Employer or Affiliate, and any other proprietary
material of Employer or Affiliate, which have not been released to
the general public. Confidential Information also includes
information received by Employer or any of its Affiliates from others
that the Employer or Affiliate has an obligation to treat as
confidential.
(h) "Effective Date" - means July 21, 2005.
(i) "Good Reason" - means the occurrence, of any of the
following (except with Employee's written consent or resulting from
an isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by Employer or its Affiliate promptly
after receipt of notice thereof from Employee):
(i) Employer or an Affiliate of Employer reduces
Employee's Base Salary (as defined in Subparagraph 7(a)
below);
(ii) Employer discontinues its bonus plan in which
Employee participates as in effect without immediately
replacing such bonus plan with a plan that is the
substantial economic equivalent of such bonus plan, or
amends such bonus plan so as to materially reduce Employee's
potential bonus at any given level of economic performance
of Employer or its successor entity;
(iii) Employer materially reduces the aggregate
benefits and perquisites to Employee from those being
provided;
(iv) Employer or any of its Affiliates requires
Employee to change the location of Employee's job or office,
so that Employee will be based at a location more than 25
miles from the location of Employee's job or office;
(v) Employer or any of its Affiliates reduces
Employee's responsibilities or directs Employee to report to
a person of lower rank or responsibilities than the person
to whom Employee reported; or
(vi) the successor to Employer fails or refuses
expressly to assume in writing the obligations of Employer
under this Agreement.
For purposes of this Agreement, a determination by Employee that
Employee has "Good Reason" shall be final and binding on Employer and
Employee absent a showing of bad faith on Employee's part.
(j) "Separation Payment" - means a lump sum equal to (A)
twelve months of the Employee's Base Salary (as defined in
Subparagraph 7(a) of this Agreement), plus (B) the annual bonus that
was paid to Employee under Subparagraph 7(b) for the annual preceding
bonus period, plus (C) any accrued but unpaid vacation pay, plus (D)
any Gross-Up Payment required by Exhibit 1 to this Agreement, which
is incorporated herein by reference.
(k) "Trade Secrets" - means unpublished inventions or works
of authorship, as well as all information possessed by or developed
by or for Employer or its Affiliate, including without limitation any
formula, pattern, compilation, program device, method, technique,
product, system, process, design, prototype, procedure, computer
programming or code that (i) derives independent economic value,
actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by the public or other persons
who can obtain economic value from its disclosure or use; and (ii) is
the subject of efforts that are reasonable to maintain its secrecy.
(l) "Work of Authorship" - means any computer program, code
or system as well as any literary, pictorial, sculptural, graphic or
audio visual work, whether published or unpublished, and whether
copyrightable or not, in whatever form and jointly with others that
(i) relates to any of Employer's or its Affiliate's existing or
potential products, practices, processes, formulations,
manufacturing, engineering, research, equipment, applications or
other business or technical activities or investigations; or (ii)
relates to ideas, work or investigations conceived or carried on by
Employer or its Affiliate or by Employee in connection with or
because of performing services for Employer or its Affiliate.
2. BASIC EMPLOYMENT AGREEMENT. Subject to the terms and pursuant to
the conditions hereinafter set forth, Employer hereby employs Employee during
the Term hereinafter specified to serve in a managerial or executive capacity,
under a title and with such duties not inconsistent with those set forth in
Paragraph 3 of this Agreement, as the same may be modified and/or assigned to
Employee by Employer from time to time; provided, however, that no change in
Employee's duties shall be permitted if it would result in a material
reduction in the level of Employee's duties prior to the change.
3. DUTIES OF EMPLOYEE. Employee shall perform the duties of Executive
Vice President and Chief Operating Officer reporting directly to the Chief
Executive Officer of Employer, and shall hold such offices with Employer and
perform such other similar duties as may be assigned to Employee by Employer,
including, but not limited to (a) the efficient and continuous operation of
Employer and Employer's Affiliates, (b) the preparation of relevant budgets
and allocation or relevant funds, (c) the selection and delegation of duties
and responsibilities of subordinates, (d) the direction, review and oversight
of all programs and projects under Employee's supervision, and (e) such other
and further related duties as specifically assigned by Employer to Employee.
The foregoing notwithstanding, Employee shall devote such time to Employer's
other Affiliates as may be required by Employer, provided such duties are not
inconsistent with Employee's primary duties to Employer hereunder.
Notwithstanding the foregoing, Employer and Employee agree that in the event
Employer materially increases the responsibilities and duties of Employee or
changes Employee's title, Employer and Employee will enter into good faith
negotiations to amend Employee's compensation in order to make it commensurate
with any such additional responsibilities and duties.
4. ACCEPTANCE OF EMPLOYMENT/ TERMINATION 2003 EMPLOYMENT AGREEMENT.
Employee hereby unconditionally accepts the employment set forth hereunder,
under the terms and pursuant to the conditions set forth in this Agreement.
Employee hereby covenants and agrees that, during the Term, Employee will
devote the whole of Employee's normal and customary working time and best
efforts solely to the performance of Employee's duties under this Agreement,
and will not perform any services for any casino, hotel/casino or other
similar gaming or gambling operation which is not owned by Employer or any of
Employer's Affiliates.
As a condition to the acceptance of the employment hereunder and
concurrent the execution of this Agreement, Employee agrees that as of the
Effective Date and concurrent with the effectiveness of this Agreement
Employee agrees to terminate the 2003 Employment Agreement by executing and
delivering the Termination Agreement attached hereto as Exhibit 2.
5. TERM. Unless sooner terminated as provided in this Agreement, the
term of this Agreement (the "Term") shall consist of three (3) years
commencing as of the Effective Date of this Agreement and expiring on the
third Anniversary of the Effective Date. Following the Term, unless the
parties enter into a new written contract of employment, (a) any continued
employment of Employee shall be at-will, (b) any or all of the other terms and
conditions of Employee's employment may be changed by Employer at its
discretion, with or without notice, and (c) the employment relationship may be
terminated at any time by either party, with or without cause or notice.
6. SPECIAL TERMINATION PROVISIONS. Notwithstanding the provisions of
Paragraph 5 of this Agreement, this Agreement shall terminate upon the
occurrence of any of the following events:
(a) the death of Employee;
(b) the giving of written notice from Employer to Employee
of the termination of this Agreement upon the Complete Disability of
Employee;
(c) the giving of written notice by Employer to Employee of
the termination of this Agreement upon the discharge of Employee for
Cause;
(d) the giving of written notice by Employer to Employee of
the termination of this Agreement following a denial or revocation of
Employee's License (as defined in Subparagraph 8(b) of this
Agreement);
(e) the giving of written notice by Employer to Employee of
the termination of this Agreement without Cause, provided, however,
that, within ten (10) calendar days after such notice, Employer must
tender the Separation Payment to Employee;
(f) the giving of written notice by Employee to Employer
upon a material breach of this Agreement by Employer, which material
breach remains uncured for a period of thirty (30) days after the
giving of such notice, provided, however, that, within ten (10) days
after the expiration of such cure period without the cure having been
effected, Employer must tender the Separation Payment to Employee; or
(g) at Employee's sole election in writing as provided in
Paragraph 16 of this Agreement, after both a Change of Control and as
a result of Good Reason, provided, however, that, within ten (10)
calendar days after Employer's receipt of Employee's written
election, Employer must tender the Separation Payment to Employee.
In the event of a termination of this Agreement pursuant to the provisions of
Subparagraph 6(a), (b), (c) or (d), Employer shall not be required to make any
payments to Employee other than payment of Base Salary and vacation pay
accrued but unpaid through the termination date. In the event of a termination
of this Agreement pursuant to the provisions of Subparagraph 6(e), (f) or (g),
Employee will also be entitled to receive health benefits coverage for
Employee and Employee's dependents under the same plan(s) or arrangement(s)
under which Employee was covered immediately before Employee's termination, or
plan(s) established or arrangement(s) provided by Employer or any of its
Affiliates thereafter. Such health benefits coverage shall be paid for by
Employer to the same extent as if Employee were still employed by Employer,
and Employee will be required to make such payments as Employee would be
required to make if Employee were still employed by Employer. The health
benefits provided under this Paragraph 6 shall continue until the earlier of
(x) the expiration of the period for which the Separation Payment is paid, (y)
the date Employee becomes covered under any other group health plan not
maintained by Employer or any of its Affiliates; provided, however, that if
such other group health plan excludes any pre-existing condition that Employee
or Employee's dependents may have when coverage under such group health plan
would otherwise begin, coverage under this Paragraph 6 shall continue (but not
beyond the period described in clause (x) of this sentence) with respect to
such pre-existing condition until such exclusion under such other group health
plan lapses or expires. In the event Employee is required to make an election
under Sections 601 through 607 of the Employee Retirement Income Security Act
of 1974, as amended (commonly known as COBRA) to qualify for the health
benefits described in this Paragraph 6, the obligations of Employer and its
Affiliates under this Paragraph 6 shall be conditioned upon Employee's timely
making such an election. In the event of a termination of this Agreement
pursuant to any of the provisions of this Paragraph 6, Employee shall not be
entitled to any benefits pursuant to any severance plan in effect by Employer
or any of Employer's Affiliates.
7. COMPENSATION TO EMPLOYEE. For and in complete consideration of
Employee's full and faithful performance of Employee's duties under this
Agreement, Employer hereby covenants and agrees to pay to Employee, and
Employee hereby covenants and agrees to accept from Employer, the following
items of compensation:
(a) BASE SALARY. Employer hereby covenants and agrees to pay
to Employee, and Employee hereby covenants and agrees to accept from
Employer, a base salary at the rate of Four Hundred Thousand Dollars
($400,000.00) per annum, payable in such regular installments as
shall be convenient to Employer (the "Base Salary"). Employee's Base
Salary shall be exclusive of and in addition to any other benefits
which Employer, in its sole discretion, may make available to
Employee, including, but not limited to, those benefits described in
Subparagraphs 7(b) through (f) of this Agreement. Employee's Base
Salary shall be subject to merit review periodically, and may be
increased but not decreased as a result of any such review.
(b) BONUS COMPENSATION. Employee also will be eligible to
receive a bonus at such times and in such amounts as Employer, in its
sole and exclusive discretion, may determine, until such time as the
Employer adopts a performance-based bonus plan, and thereafter in
accordance with such plan. Employer agrees that until such time as
Employer adopts a performance-based bonus plan in which Employee is
eligible to participate, Employee's annual bonus shall not be less
than One Hundred Twenty-Five Thousand Dollars ($125,000.00) (the
"Minimum Bonus"); following the adoption of the such a plan,
Employee's bonus shall be in accordance with such plan. Except with
respect to the payment of the Minimum Bonus, nothing in this
Agreement shall limit the Board's discretion to adopt, amend or
terminate any bonus plan at any time prior to a Change of Control.
(c) EMPLOYEE BENEFITS. Employer hereby covenants and agrees
that it shall include Employee, if otherwise eligible, in any profit
sharing plan, executive stock option plan, pension plan, retirement
plan, disability or life insurance plan, medical and/or
hospitalization plan, and/or any and all other benefit plans which
may be placed in effect by Employer or any of its Affiliates for the
benefit of Employer's executives during the Term. Unless prohibited
by law or the terms of the applicable plan, Employee's eligibility
for medical and/or hospitalization benefits shall commence on the
Effective Date. Nothing in this Agreement shall limit (i) Employer's
ability to exercise the discretion provided to it under any benefit
plan, or (ii) Employer's or its Affiliates' discretion to adopt,
amend or terminate any benefit plan at any time prior to a Change of
Control.
(d) EXPENSE REIMBURSEMENT. During the Term and provided the
same are authorized by Employer, Employer shall either pay directly
or reimburse Employee for Employee's reasonable expenses incurred for
the benefit of Employer in accordance with Employer's general policy
regarding expense reimbursement, as the same may be amended, modified
or changed from time to time. Such reimbursable expenses shall
include, but are not limited to, (i) reasonable entertainment and
promotional expenses, (ii) gift and travel expenses, (iii) dues and
expenses of membership in clubs, professional societies and fraternal
organizations, and (iv) the like. Prior to reimbursement, Employee
shall provide Employer with sufficient detailed invoices of such
expenses as may be required by Employer's expense reimbursement
policy.
(e) VACATIONS AND HOLIDAYS. Commencing as of the Effective
Date of this Agreement, Employee shall be entitled to (i) annual paid
vacation leave in accordance with Employer's standard policy, but in
no event less than two (2) weeks during each year of the Term, to be
taken at such times as selected by Employee and approved by Employer,
and (ii) paid holidays (or, at Employer's option, an equivalent
number of paid days off) in accordance with Employer's standard
policy.
(f) WITHHOLDINGS. All compensation to Employee identified in
this Paragraph 7 shall be subject to applicable withholdings for
federal, state or local income or other taxes, Social Security Tax,
Medicare Tax, State Unemployment Insurance, State Disability
Insurance, voluntary charitable contributions and the like.
(g) BENEFITS DATE. Employee's Benefits Date shall be used
for determining vacation and other benefits.
8. LICENSING REQUIREMENTS.
(a) Employer and Employee hereby covenant and agree that
this Agreement may be subject to the approval of one or more gaming
regulatory authorities (the "Gaming Authorities") pursuant to the
provisions of the applicable gaming regulatory statutes and the
regulations promulgated thereunder (the "Gaming Laws"). Employer and
Employee hereby covenant and agree to use their best efforts, at
Employer's sole cost and expense, to obtain any and all approvals
required by the Gaming Laws. In the event that (i) an approval of
this Agreement by the Gaming Authorities is required for Employee to
carry out his duties and responsibilities set forth in Paragraph 3 of
this Agreement, (ii) Employer and Employee have used their best
efforts to obtain such approval, and (iii) this Agreement is not so
approved by the Gaming Authorities, then this Agreement shall
immediately terminate and shall be null and void.
(b) Employer and Employee hereby covenant and agree that, in
order for Employee to discharge the duties required under this
Agreement, Employee may be required to apply for or hold a license,
registration, permit or other approval as issued by the Gaming
Authorities pursuant to the terms of the applicable Gaming Laws and
as otherwise required by this Agreement (the "License"). In the event
Employee fails to apply for and secure, or the Gaming Authorities
refuse to issue or renew, or revoke or suspend any required License,
then Employee, at Employer's sole cost and expense, shall promptly
defend such action and shall take such reasonable steps as may be
required to either remove the objections, secure the Gaming
Authorities' approval, or reinstate the License, respectively. The
foregoing notwithstanding, if the source of the objections or the
Gaming Authorities' refusal to renew the License or their imposition
of disciplinary action against Employee is any of the events
described in Subparagraph 1(d) of this Agreement, then Employer's
obligations under this Paragraph 8 shall not be operative and
Employee shall promptly reimburse Employer upon demand for any
expenses incurred by Employer pursuant to this Paragraph 8.
(c) Employer and Employee hereby covenant and agree that the
provisions of this Paragraph 8 shall apply in the event Employee's
duties require that Employee also be licensed by such relevant
governmental agencies other than the Gaming Authorities.
9. CONFIDENTIALITY.
(a) Employee hereby warrants, covenants and agrees that
Employee shall not directly or indirectly use or disclose any
Confidential Information, Trade Secrets, or Works of Authorship,
whether in written, verbal, or model form, at any time or in any
manner, except as required in the conduct of Employer's business or
as expressly authorized by Employer in writing. Employee shall take
all necessary and available precautions to protect against the
unauthorized disclosure of Confidential Information, Trade Secrets,
or Works of Authorship. Employee acknowledges and agrees that such
Confidential Information, Trade Secrets, or Works of Authorship are
the sole and exclusive property of Employer or its Affiliate.
(b) Employee shall not remove from Employer's premises any
Confidential Information, Trade Secrets, Works of Authorship, or any
other documents pertaining to Employer's or its Affiliate's business,
unless expressly authorized by Employer in writing. Furthermore,
Employee specifically covenants and agrees not to make any
duplicates, copies, or reconstructions of such materials and that, if
any such duplicates, copies, or reconstructions are made, they shall
become the property of Employer or its Affiliate upon their creation.
(c) Upon termination of Employee's employment with Employer,
Employee shall turn over to Employer the originals and all copies of
any and all papers, documents and things, including information
stored for use in or with computers and software, all files, Rolodex
cards, phone books, notes, price lists, customer contracts, bids,
customer lists, notebooks, books, memoranda, drawings, or other
documents: (i) made, compiled by, or delivered to Employee concerning
any customer served by Employer or its Affiliate or any product,
apparatus, or process manufactured, used, developed or investigated
by Employer; (ii) containing any Confidential Information, Trade
Secret or Work of Authorship; or (iii) otherwise relating to
Employee's performance of duties under this Agreement. Employee
further acknowledges and agrees that all such documents are the sole
and exclusive property of Employer or its Affiliate.
(d) Employee hereby warrants, covenants and agrees that
Employee shall not disclose to Employer, or any Affiliate, officer,
director, employee or agent of Employer, any proprietary or
confidential information or property, including but not limited to
any trade secret, formula, pattern, compilation, program, device,
method, technique or process, which Employee is prohibited by
contract, or otherwise, to disclose to Employer (the "Restricted
Information"). In the event, Employer requests Restricted Information
from Employee, Employee shall advise Employer that the information
requested is Restricted Information and may not be disclosed by
Employee.
(e) The obligations of this Section 10 are continuing and
shall survive the termination of Employee's employment with Employer.
10. RESTRICTIVE COVENANT/NO SOLICITATION.
(a) Employee hereby covenants and agrees that, during the
Term, or for such longer period as Employee receives cash
compensation under this Agreement, Employee shall not directly or
indirectly, either as a principal, agent, employee, employer,
consultant, partner, member or manager of a limited liability
company, shareholder of a closely held corporation, or shareholder in
excess of two percent (2%) of a publicly traded corporation,
corporate officer or director, or in any other individual or
representative capacity, engage or otherwise participate in any
manner or fashion in any gaming business that is in competition in
any manner whatsoever with the principal business activity of
Employer or Employer's Affiliates, in or about any market in which
Employer or Employer's Affiliates have or have publicly announced a
plan for gaming operations. Employee hereby further covenants and
agrees that the restrictive covenant contained in this Paragraph 10
is reasonable as to duration, terms and geographical area and that
the same protects the legitimate interests of Employer, imposes no
undue hardship on Employee, and is not injurious to the public.
(b) Employee hereby further covenants and agrees that, for
the period described in Subparagraph 10(a), Employee shall not
directly or indirectly solicit or attempt to solicit for employment
any management level employee of Employer or Employer's Affiliates
with or on behalf of any business that is in competition in any
manner whatsoever with the principal business activity of Employer or
Employer's Affiliates, in or about any market in which Employer or
Employer's Affiliates have or plan gaming or hotel operations.
11. BEST EVIDENCE. This Agreement shall be executed in original and
"Xerox" or photostatic copies and each copy bearing original signatures in ink
shall be deemed an original.
12. SUCCESSION. This Agreement shall be binding upon and inure to the
benefit of Employer and Employee and their respective successors and assigns.
13. ASSIGNMENT. Employee shall not assign this Agreement or delegate
his duties hereunder without the express written prior consent of Employer
thereto. Any purported assignment by Employee in violation of this Paragraph
13 shall be null and void and of no force or effect. Employer shall have the
right to assign this Agreement to any of its Affiliates, provided that this
agreement shall be reassigned to Employer upon a sale of that Affiliate or
substantially all of that Affiliate's assets to an unaffiliated third party,
provided further that, in any event, Employer shall have the right to assign
this Agreement to any successor of Employer that is not an affiliate of
Employer.
14. AMENDMENT OR MODIFICATION. This Agreement may not be amended,
modified, changed or altered except by a writing signed by both Employer and
Employee.
15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada without regard to its
conflicts of law principles.
16. NOTICES. Any and all notices required under this Agreement shall
be in writing and shall be either hand-delivered or mailed, certified mail,
return receipt requested, addressed to:
TO EMPLOYER: Xxxx Las Vegas, LLC
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
WITH A COPY Wynn Resorts, Limited
THAT SHALL NOT BE 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
NOTICE TO: Xxx Xxxxx, Xxxxxx 00000
Attn: Legal Department
TO EMPLOYEE: Xxxxxx Xxxxxx
0000 Xxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
All notices hand-delivered shall be deemed delivered as of the date actually
delivered. All notices mailed shall be deemed delivered as of three (3)
business days after the date postmarked. Any changes in any of the addresses
listed herein shall be made by notice as provided in this Paragraph 16.
17. INTERPRETATION. The preamble recitals to this Agreement are
incorporated into and made a part of this Agreement; titles of paragraphs are
for convenience only and are not to be considered a part of this Agreement.
18. SEVERABILITY. In the event any one or more provisions of this
Agreement is declared judicially void or otherwise unenforceable, the
remainder of this Agreement shall survive and such provision(s) shall be
deemed modified or amended so as to fulfill the intent of the parties hereto.
19. DISPUTE RESOLUTION. Except for equitable actions seeking to
enforce the provisions of Sections 9 and 10 of this Agreement, jurisdiction
and venue for which is hereby granted to the court of general trial
jurisdiction in Las Vegas, Nevada, any and all claims, disputes, or
controversies arising between the parties hereto regarding any of the terms of
this Agreement or the breach thereof, on the written demand of either of the
parties hereto, shall be submitted to and be determined by final and binding
arbitration held in Las Vegas, Nevada, as conducted by and in accordance with
Employer's policy governing employment disputes or, in the absence of any such
policy, the labor arbitration rules of the American Arbitration Association.
This agreement to arbitrate shall be specifically enforceable in any court of
competent jurisdiction.
20. WAIVER. None of the terms of this Agreement, including this
Paragraph 20, or any term, right or remedy hereunder shall be deemed waived
unless such waiver is in writing and signed by the party to be charged
therewith and in no event by reason of any failure to assert or delay in
asserting any such term, right or remedy or similar term, right or remedy
hereunder.
21. PAROL. This Agreement constitutes the entire agreement between
Employer and Employee with respect to the subject matter hereto and, except
for any agreement pertaining to the issuance of restricted stock to Employee
by Employer or any of its Affiliates, this Agreement supersedes any prior
understandings, agreements, undertakings or severance policies or plans by and
between Employer or Employer's Affiliates, on the one side, and Employee, on
the other side, with respect to the subject matter hereof or Employee's
employment with Employer or its Affiliates.
IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND THEREBY, the
parties hereto have executed and delivered this Agreement as of the year and
date first above written.
XXXX LAS VEGAS, LLC EMPLOYEE
By: /s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxx
------------------------------------- --------------------------------
Xxxx Xxxxxx Xxxxxx Xxxxxx
Chief Executive Officer
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EMPLOYMENT AGREEMENT
("Agreement")
- by and between -
XXXX LAS VEGAS, LLC
("Employer")
- and -
XXXXXX XXXXXX
("Employee")
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DATED: as of August 31, 2003
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