This Employment
Agreement dated as of October 23, 2008 (this
“Agreement”), between Stratosphere Gaming, LLC( the
“Company”), having an address at 2000 Las Vegas
Boulevard South, Las Vegas, Nevada 89104, and Arthur
Keith(“Employee”), of Las Vegas, Nevada.
Upon the terms
and conditions hereinafter set forth, the Company hereby agrees to
employ Employee and Employee hereby agrees to become employed by
the Company. During the Term of Employment (as hereinafter
defined), Employee shall be employed in the position of President
of the Company and shall also serve in other positions of the
affiliates of the Company as may be designated (the
“Designated Affiliates”) from time to time by the board
of directors of the Company (the “Board”), provided
that such Designated Affiliates are engaged in businesses relating
to gaming, casino or resort operation or development (collectively,
the “Gaming Business”). Employee shall perform such
duties as are specified from time to time by the Company and the
Board. Employee shall serve in such capacities at the pleasure of
the Board. Employee shall report to and be under the supervision of
the Company’s Board.
During the Term
of Employment, Employee shall devote his professional attention, on
a full time basis, to the business and affairs of the Company and
the Designated Affiliates, shall use his best efforts to advance
the best interest of the Company and the Designated Affiliates and
shall comply with all of the policies of the Company and the
Designated Affiliates, including, without limitation, such policies
with respect to legal and gaming compliance, conflicts of interest,
confidentiality and business ethics as are from time to time in
effect.
Except as
specifically provided herein, during the Term of Employment,
Employee shall not, without the prior written consent of the
Company, directly or indirectly (i) render services to, or
otherwise act in a business or professional capacity on behalf of
or for the benefit of, any other individual, entity, company or
group (hereinafter
referred to as
“Person”) as an employee, advisor, independent
contractor, agent, consultant, representative or otherwise, whether
or not compensated, (ii) plan, negotiate or have discussions
with any Person regarding, or otherwise attempt to secure, future
employment with any Person other than the Company or the Acquiring
Person (as hereinafter defined) or (iii) plan, take any
actions in furtherance of, or otherwise devote any time to, any
future business opportunity (except as otherwise provided in this
Agreement), whether sponsored by Employee or any other Person (the
“Exclusivity Obligation” ).
The employment
period shall commence as of October 23, 2008 and shall
continue through the period (the “Term of Employment”)
ending on October 22, 2011 (the “Expiration
Date”), unless earlier terminated as set forth in this
Agreement.
For all
services to be performed by Employee under this Agreement, during
the Term of Employment, Employee shall be compensated in the
following manner:
The Company
will pay Employee a salary (the “Base Salary”) at an
annual rate of $425,000. The Base Salary shall be payable in
accordance with the normal payroll practice of the Company (but no
less frequently than bi-weekly).
During the Term
of Employment, Employee shall be eligible to receive an annual
bonus, as may, from time to time, be determined in the sole
discretion of the Board (the “Bonus
Compensation”).
During the Term
of Employment, Employee shall be eligible to receive a Second Tier
Bonus, as may, from time to time, be
determined in
the sole discretion of the Board (the “Second Tier
Bonus”). Any Second Tier Bonus, if determined to be paid to
Employee, will vest as follows: a) one-third immediately upon date
a that a Second Tier Bonus is granted by the Board (“Grant
Date”), b) one-third on the expiration of twelve
(12) months from the Grant Date, and c) one-third on the
expiration of twenty four (24) months from the Grant
Date
All amounts
paid by the Company to Employee under or pursuant to this
Agreement, including, without limitation, the Base Salary and any
Bonus Compensation, or any other compensation or benefits, whether
in cash or in kind, shall be subject to normal withholding and
deductions imposed by any one or more local, state or federal
governments.
This Agreement
shall terminate (subject to Section 9(g) below) and the Term of
Employment shall end, on the first to occur of (each a
“Termination Event”):
|
|
(a)
|
|
The
Expiration Date;
|
|
|
|
|
|
|
|
(b)
|
|
The
death of Employee or the total or partial disability that, in the
judgment of the Company, renders Employee, with or without
reasonable accommodation, unable to perform his essential job
functions for the Company for a period of at least 90 consecutive
business days;
|
|
|
|
|
|
|
|
(c)
|
|
The
discharge of Employee by the Company with (i) Cause (as
hereinafter defined) or (ii) without Cause;
|
|
|
|
|
|
|
|
(d)
|
|
The
resignation of Employee (and without limiting the effect of such
resignation, Employee agrees to provide the Company with not less
than 30 days prior written notice of his resignation);
or
|
The Company may
discharge Employee at any time, for any reason or no reason, with
or without Cause, in which event Employee shall be entitled only to
such payments as are set forth in Section 5 below.
As used herein,
“Cause” is defined as Employee’s:
(i) failure to perform the duties assigned to him;
(ii) chronic impairment due to alcohol or substance abuse;
(iii) conviction of a Serious Crime or being charged with a
felony (for purposes of this Agreement a “Serious
Crime” is a crime that the Company believes could prohibit
the Employee from obtaining or maintaining any work card, license,
or finding of compliance suitability necessary for Employee to
maintain employment with Company) ; (iv) violation of a
federal or state securities law or regulation; (v) negligent
conduct, error or omission in the carrying out of his duties under
this Agreement; (vi) conduct that causes damage to the
reputation of the Company(vii) breach of the Exclusivity Obligation
or any of the obligations set forth in Section 6 or
Section 7 below; (viii) any revocation or suspension by
any state or local authority of Employee’s required
license(s) to serve in his position(s) with the Company; or
(ix) any act or failure to act by Employee which causes any
gaming or other regulatory authority having jurisdiction over the
Company, the Designated Affiliates or any of their affiliates to
seek any redress or remedy against Employee, the Company, any
Designated Affiliate or any of their affiliates.
In the event of
termination of Employee’s employment hereunder, all rights of
Employee under this Agreement, including all rights to
compensation, shall end and Employee shall only be entitled to be
paid the amounts set forth in this Section 5 below.
(a) In the
event that the Term of Employment ends (i) for the reason set
forth in Section 4(a) above (i.e., Expiration Date), or
(ii) for any of the reasons set forth in Section 4(b) above
(i.e. death or disability) or (iii) for the reason set forth
in Section 4(d) above (i.e. resignation), or (iv) for the
reason set forth in Section 4(c)(i) (with Cause), then, in
lieu of any other payments of any kind, Employee shall be entitled
to receive, within fifteen (15) days following the date on
which the Termination Event in question occurred (the “Clause
(a)
Termination
Date”) any amounts of: (A) Base Salary due and unpaid to
Employee from the Company as of the Clause (a) Termination
Date; and (B) Bonus Compensation earned, vested, due and
unpaid to Employee from the Company as of the Clause
(a) Termination Date.
(b) In the
event that the Term of Employment ends (i) for the reasons set
forth in Section 4(c)(ii) above (without Cause) then, in lieu
of any other payments of any kind, Employee shall be entitled to
receive, within fifteen (15) days following the date on which
the Termination Event in question occurred (the “Clause
(b)&nb
|
