EMPLOYMENT
AGREEMENT
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 Michael Darley
("Executive").
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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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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 clai
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