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Exhibit
10.36
EMPLOYMENT
AGREEMENT
(“Agreement”)
- by and between -
WYNN LAS VEGAS,
LLC,
dba Le
Rêve
(“Employer”)
- and -
JAMES E.
PETTIS
(“Employee”)
DATED: as of December
16, 2002
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT
AGREEMENT (“ Agreement ”) is made and
entered into as of the 16th day of December, 2002, by and between
WYNN LAS VEGAS, LLC, dba Le Rêve (“
Employer ”) and JAMES E. PETTIS (“
Employee ”).
W I T N E S S E T
H :
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 3145 Las Vegas Blvd. South, Las Vegas, Nevada,
and is engaged in the business of developing, constructing and
operating a casino resort at such place of business;
and,
WHEREAS, in
furtherance of its business, Employer has need of qualified,
experienced personnel; and,
WHEREAS,
Employee is an adult individual residing at 1216 Strong Drive, Las
Vegas, Nevada 89102; 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 do 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,
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 (as defined in Paragraph 6
hereof).
(c) “
Cause ” - means
(i) the willful destruction
by Employee of the property of Employer or an Affiliate 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);
(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);
(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, that is not cured within fifteen
(15) days after Employee has received written notice thereof from
Employer;
(v) a willful and knowing
material misrepresentation to Employer’s or an
Affiliate’s Board of Directors;
(vi) a willful violation of a
material policy of Employer or an Affiliate, which does or could
result in material harm to Employer or to Employer’s
reputation, or that of an Affiliate; or
(vii) Employee’s
material violation of a statutory or common law duty of loyalty or
fiduciary duty to Employer or an Affiliate,
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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.
(d) “ 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 Employer, or of any entity resulting from a merger or
consolidation involving Employer, representing more than fifty
percent (50%) of the combined voting power of the then outstanding
securities of Employer or such entity;
(ii) the individuals who, as
of the time immediately following the closing of Employer’s
initial public offering, are members of Employer’s Board of
Directors (the “Existing Directors”) cease, for any
reason, to constitute more than fifty percent (50%) of the number
of authorized directors of Employer as determined in the manner
prescribed in Employer’s Articles of Incorporation and
Bylaws; provided , however , that if the
election, or nomination for election, by Employer’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
Board (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
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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 in Control” pursuant to subparagraph (i) of
this definition of “Change in Control”;
provided , however , that no such Transaction
shall constitute a “Change in 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 in Control,” the term
“Excluded Stockholder” means Stephen A. Wynn, the
spouse, siblings, children, grandchildren or great grandchildren of
Stephen A. Wynn, any trust primarily for the benefit of the
foregoing persons, or any Affiliate of any of the foregoing
persons.
(e) “ 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.
(f) “ Effective
Date ” - means December 16, 2002.
(g) “ Good
Reason ” - means the occurrence, on or after the
occurrence of a Change in Control, 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
reduces Employee’s Base Salary (as defined in Subparagraph
8(a) below);
(ii) Employer discontinues
its bonus plan in which Employee participates as in effect
immediately before the
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Change in Control 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 immediately before the Change in
Control;
(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 immediately before the Change in Control;
(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 immediately before the
Change in Control; 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.
(h) “ Separation
Payment ” - means a lump sum equal to (A)
Employee’s Base Salary (as defined in Subparagraph 8(a) of
this Agreement) for the twelve (12) months immediately following
termination, plus (B) the bonus that was paid to Employee under
Subparagraph 8(b) for the preceding bonus period, projected over
the twelve (12) months following that 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.
2. PRIOR
EMPLOYMENT . This Agreement supersedes and replaces any
and all prior employment agreements, change in control agreements
and severance plans or agreements, whether written or oral, by and
between Employee, on the one side, and Employer or any Affiliate of
Employer, on the other side, or under which Employee is a
participant. From and after the Effective Date, Employee shall be
the employee of Employer under the terms and pursuant to the
conditions set forth in this Agreement.
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3. 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 capacity, under
a title, and with such duties not inconsistent with those set forth
in Section 4 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 as in effect prior to the change, it
being understood, however, that a change in Employee’s
reporting responsibilities is not, itself, a basis for finding a
material reduction in the level of duties.
4. DUTIES OF
EMPLOYEE . Employee shall perform such duties assigned
to Employee by Employer as are generally associated with the duties
of Senior Vice President - Administration for Employer or
such similar duties as may be assigned to Employee by Employer as
Employer may determine. Employee’s duties shall include, but
not be limited to: (i) the efficient and continuous operation of
Employer and its Affiliates; (ii) the preparation of relevant
budgets and allocation or relevant funds; (iii) the selection and
delegation of duties and responsibilities of subordinates; (iv) the
direction, review and oversight of all programs under
Employee’s supervision; and (v) such other and further duties
as may be assigned by Employer to Employee from time to time. The
foregoing notwithstanding, Employee shall devote such time to
Employer’s Affiliates as may be required by Employer,
provided such duties are not inconsistent with Employee’s
primary duties to Employer hereunder.
5. ACCEPTANCE OF
EMPLOYMENT . 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, except for continuing his historical
practice of consulting and advising third parties on insurance
matters on a limited and periodic basis (provided the same does not
interfere with the performance of Employee’s duties under
this Agreement), and in other instances only upon Employer’s
prior express written authorization, 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 shall not perform any services for any casino,
hotel/casino or other similar gaming or gambling operation not
owned by Employer or any of Employer’s Affiliates.
6. TERM
. Unless sooner terminated as provided in this Agreement,
the term of this Agreement (the “ Term ”) shall
consist of five (5) years commencing as of the Effective Date of
this Agreement and terminating on the fifth Anniversary Date of the
Effective Date.
7. SPECIAL
TERMINATION PROVISIONS . Notwithstanding the provisions
of Section 6 of this Agreement, this Agreement shall terminate upon
the occurrence of any of the following events:
(a) the death of
Employee;
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(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 9(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 materi
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