EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
December 17, 2004, by and between The Majestic Star Casino, LLC
("Employer"), and Steven J. Lemberg ("Employee").
1. Employment. Employer hereby employs Employee, and Employee hereby accepts
employment by the Employer, as Employer's Executive Vice President to
perform such executive, managerial or administrative duties, commensurate
with Employee's position, as Employer may specify from time to time, during
the Specified Term as defined in Section 2. Employee shall report directly
to Don H. Barden and shall continue to serve as a member of the Board of
Directors of Majestic Star Casino, LLC during the specified term at the
sole discretion of the Chairman. of the Board.
2. Effective Date; Specified Term. This Agreement shall be effective as of
Employee's commencement date. Subject to earlier termination as provided
herein, the term of the Employee's employment hereunder shall commence on
January 3, 2005, and terminate on the second (2nd) anniversary thereof (the
"Specified Term"). This Agreement will automatically renew for successive
periods of one (1) year unless written notice of intent not to renew shall
be provided by either party no later than ninety (90) days prior to each
contract expiration date. If either party to this Agreement chooses not to
renew the terms and conditions set forth herein by exercising their rights
under this paragraph 2, then Employee'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 9, 10, 13, 14, 16, 17, and 21. Notwithstanding the foregoing,
the parties to this Agreement are free to agree in writing to extend the
Specified Term or other provisions of this Agreement.
3. Compensation.
a. Base Salary. During the Specified Term, in consideration of the
performance by Employee of Employee's obligations hereunder to
Employer and its parents, subsidiaries, affiliates, and joint ventures
(collectively, the "Employer Group"), Employer shall pay Employee an
annual base salary (the "Base Salary") of $300,000 (three hundred
thousand dollars). The base salary shall be reviewed annually,
exclusively by Employer, and any increase thereto shall be in
Employer's sole discretion. The Base Salary shall be payable in
accordance with the payroll practices of Employer in effect from time
to time for Employer's senior executives. 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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b. Discretionary Bonus Compensation. Employee is eligible to participate
in Employer's discretionary bonus program as formulated from time to
time by Employer's Board of Directors in its sole discretion. Such
program is primarily based on achievement of Employer's EBITDA goals
and Employee's performance as determined by the Board of Directors in
its sole discretion. Employee's Bonus Compensation shall be paid to
him by no later than Employer pays similarly situated executives in
the subsequent year and shall be paid to him regardless of whether or
not he is still employed as of the March 15th date.
c. Employee Benefit Programs. During the Specified Term, Employee shall
be entitled to participate in Employer's employee benefit plans as are
generally made available from time to time to Employer's senior
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. Until Employee becomes eligible
for insurance benefits, Employer will pay those actual COBRA costs
incurred by Employee on behalf of the Employee and dependents, up to a
maximum period of six (6) months only upon presentation of adequate
documentation of such costs being incurred by Employee.
d. Business Expense Reimbursements. Employer will pay or reimburse
Employee for all reasonable out-of-pocket expenses, including travel
expenses, Employee incurs during the Specified Term in the course of
performing Employee's duties under this Agreement upon timely
submission of appropriate documentation to Employer, as prescribed
from time to time by Employer.
4. Extent of Services. Employee agrees that the duties and services to be
performed by Employee shall be performed exclusively for members of the
Employer Group. Employee further agrees to perform such duties in an
efficient, trustworthy, lawful, and businesslike manner. Employee 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
Employee's duties under this Agreement, without the prior written approval
of the Board. The parties recognize that Employee may, with approval of
Employer, serve on other Boards of Directors and to render services for
charitable and religious activities.
5. Policies and Procedure s. In addition to the terms herein, Employee agrees
to be bound by Employer's policies and procedures including drug testing
and background checks, as they 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. Employer recognizes that it has a
responsibility to see that its employees understand the adverse effects
that problem gambling and underage gambling can have on individuals and the
gaming industry as a whole. Employee agrees to read, understand, and comply
with Employer's policy prohibiting underage gaming and supporting programs
to treat compulsive gambling.
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6. Licensing Requirements. Employee 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 Nevada and other
jurisdictions in which Employer or Employer Group is engaged or has applied
or, during the Specified Term, may apply to engage in the gaming business.
If requested to do so by Employer or Employer Group, Employee shall apply
for and obtain any license, qualification, clearance or the like that shall
be requested or required of Employee by any regulatory authority having
jurisdiction over Employer or Employer Group.
7. Failure to Satisfy Licensing Requirement. If Employee fails to satisfy any
licensing requirement referred to in Section 6 above, or if any
governmental authority directs the Employer to terminate any relationship
it may have with Employee, or if Employer shall determine, in Employer's
sole and exclusive judgment, that Employee 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, 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 Section 12.
8. Option Provision. Employee is eligible to participate in Employer's option
program, as may be formulated from time to time by Employer's Board of
Directors in its sole discretion, and in accordance with such program as it
is made available to Employer's senior executives.
9. Restrictive Covenants.
a. Competition. Employee acknowledges that, in the course of Employee's
responsibilities hereunder, Employee will form relationships and
become acquainted with certain confidential and proprietary
information as further described in Section 9(b). Employee 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, if any, are reasonably necessary in
order for Employer and Employer Group to remain competitive in the
gaming industry. In recognition of their heightened need for
protection from abuse of relationships formed or information garnered
before and during the Specified Term of the Employee's employment
hereunder, Employee covenants and agrees for the nine (9) month period
immediately following termination of employment for any reason (the
"Restrictive Period"), not to directly or indirectly be employed by,
provide consultation or other services to, engage or participate in,
provide advice, information or assistance to, fund or invest in, or
otherwise be connected or associated in any way or manner with, any
firm, person, corporation or other entity which is either directly,
indirectly or through an affiliated company or entity, engaged in
gaming or proposes to engage in gaming in the State of Nevada, or in
or within a 150 mile radius of any other location in which any
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member of the Employer Group during the Restrictive Period is engaged
in gaming or proposes to engage in gaming. The covenants under this
Section 9(a) include, but are not limited to, Employee's covenant not
to:
i. Make known to any third party 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;
ii. 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 any member of the Employer Group, either
for Employee's own account or for any third party;
iii. Call on, solicit and/or take away, any potential or prospective
customer of Employer or any member of the Employer Group, on whom
the Employee called or with whom Employee became acquainted
during employment (either before or during the Specified Term),
either for Employee's own account or for any third party; and
iv. 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.
b. Confidentiality. Employee covenants and agrees that Employee 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 of the Employer Group any Trade Secret (as defined
below), or proprietary or other confidential information concerning
Employer or any member of the Employer Group, including without
limitation, Employer's customers and its casino, hotel, and marketing
data practices, procedures, management 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 Employee or any other party. Employee covenants and
agrees that Employee 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, including communications with or contact with any such customer
other than in connection with employment hereunder. For purposes of
this Section 9, 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
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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.
c. Former Employer Information. Employee will not intentionally, during
the Specified Term, improperly use or disclose any proprietary
information or Trade Secrets of any former employer or other person or
entity and will not bring onto the premises of the Employer any
unpublished document or proprietary information belonging to any such
employer, person or entity unless consented to in writing by such
employer, person or entity.
d. Third Party Information. Employee 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. Employee
will hold all such confidential or proprietary information in the
strictest confidence and will not disclose it to any person or entity
or to use it except as necessary in carrying out Employee's duties
hereunder consistent with Employer's (or such other member of the
Employer Group's) agreement with such third party.
e. Employer's Property. Employee hereby confirms that Trade Secrets,
proprietary or confidential information and all information concerning
customers who utilize the goods, services or facilities of any hotel
and/or casino owned, operated or managed by Employer constitute
Employer's exclusive property (regardless of whether Employee
possessed or claims to have possessed such information prior to the
date hereof). Employee agrees that upon termination of employment,
Employee shall promptly return to the Employer all notes, notebooks,
memoranda, computer disks, and any other similar repositories of
information (regardless of whether Employee 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 Section 9(b). 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.
f. Notice to Employer. Employee agrees to notify Employer immediately of
any employers for whom Employee works or provides services (whether or
not for remuneration to Employee or a third party) during the
Specified Term or within the Restrictive Period. Employee further
agrees to promptly notify Employer, during Employee's employment with
Employer, of any contacts made by any gaming licensee that concern or
relate to an offer of future employment (or consulting services) to
Employee.
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10. Representations. Employee hereby represents, warrants and agrees with
Employer that:
a. The covenants and agreements contained in Sections 4 and 9 above are
reasonable, appropriate and suitable in their geographic scope,
duration and content; the Employer's agreement to employ the Employee
and a portion of the compensation and consideration to be paid to
Employee hereunder is separate and partial consideration for such
covenants and agreements; the Employee shall not, 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;
b. The enforcement of any remedy under this Agreement will not prevent
Employee from earning a livelihood, because Employee's past work
history and abilities are such that Employee can reasonably expect to
find work in other areas and lines of business;
c. The covenants and agreements stated in Sections 4, 6, 7, and 9 above
are essential for the Employer's reasonable protection;
d. Employer has reasonably relied on these covenants and agreements by
Employee; and
e. Employee has the full right to enter into this Agreement and by
entering into and performance of this Agreement will not violate or
conflict with any arrangements or agreements Employee may have or
agreed to have with any other person or entity.
f. Employee acknowledges and warrants to Employer the receipt and
sufficiency of separate consideration for the assignment by Employer
of Employer's rights and Employee's obligation under Section 9.
Notwithstanding any other provision of this Agreement, Employee agrees that
in the event of Employee's breach or threatened breach of any covenants and
agreements set forth in Sections 4 and 9 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, Employee waives any claim that the
Employer has an adequate remedy at law or for the posting of a bond. Should
the Employer fail to prevail in such action, Employer shall reimburse
Employee for all costs and attorney fees incurred in defense of the action.
Should Employer prevail such action, Employee shall reimburse Employer for
all costs and attorney's fees incurred in prosecuting such action. If the
Employer obtains equitable relief, the Employer must file for arbitration
within fifteen (15) business days of the equitable relief being granted.
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11. Termination for Death or Disability. Employee's employment hereunder shall
terminate upon Employee's death or Disability (as defined below). In the
event of Employee's death or Disability, Employee (or Employee's estate or
beneficiaries in the case of death) 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 earned but unpaid bonus then payable to Employee
(which shall be paid on Employer's next scheduled payroll date), (3)
business expense reimbursement pursuant to Section 3(d), (4) benefits
provided pursuant to Section 3(c), subject to the terms and conditions
applicable thereto, and (5) Company paid COBRA benefits to his dependents
for a period of twelve (12) months after which time Employee or his
dependents shall be solely and exclusively responsible for the costs of
such benefits. For purposes of this Section 11, Disability is defined as
Employee's incapacity, certified by an independent licensed physician
selected by Employer ("Employer's Physician"), which precludes Employee
from performing the essential functions of Employee's duties hereunder for
a period of not less than sixty (60) consecutive days or ninety (90) days
in any rolling one hundred eighty (180) day period. In the event Employee
disagrees with the conclusions of the Employer's Physician, Employee (or
Employee's representative) shall designate a physician ("Employee's
Physician"), and Employer's Physician and Employee's Physician shall
jointly select a third physician ("Third Physician"), who shall make the
determination which determination shall be final and binding on the parties
hereto. The cost of the third physician shall be the responsibility of the
Employer. Employee hereby consents to any examination or to provide or
authorize access to any medical records that may be reasonably required by
Employer's Physician or the Third Physician in connection with any
determination to be made pursuant to this Section 11.
12. Termination.
a. Termination by Employer for Cause. Employer may terminate Employee's
employment hereunder for Cause (as defined below) at any time. If
Employer terminates Employee's employment for Cause, Employee 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)
business expense reimbursement pursuant to Section 3(d), and (3)
benefits provided pursuant to Section 3(c), subject to the terms and
conditions applicable thereto. For purposes of this Section 12 (a),
Cause is defined as Employee's (i) failure to abide by Employer's
policies and procedures, (ii) gross misconduct, gross negligence,
insubordination, or willful inattention to Employer's business, (iii)
failure to perform the duties required of Employee up to the standards
established by the Board, or other material breach of this Agreement
(other than as a result of a Disability), or (iv) failure or inability
to satisfy the
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requirements stated in Section 7 above. Should Employer believe that
cause exists to terminate Employee, Employer agrees to provide written
notice to Employee of the specific items identified as cause and to
afford Employee a period of twenty (20) business days from receipt of
the written notice to remedy these deficiencies to Employer's
satisfaction, which Employer shall not unreasonably withhold. If, at
the conclusion of the cure period, Employer determines Employee has
not satisfactorily remedied the deficiency, Employer shall notify
Employee who shall be immediately terminated. Further, nothing in this
paragraph 12 precludes Employer from immediately terminating
Employee's employment if Employee engages in 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 Employer do so.
b. Termination Without Cause. Employer may terminate Employee at any time
upon forty-five (45) business days' written notice, or, in the
Employer's sole discretion, the equivalent of Base Salary in lieu of
notice, consistent with, and not in addition to, those amounts due
under paragraph 12(f) below.
c. Termination by Employee for Good Reason. Employee may terminate
Employee's employment upon forty-five (45) days advance written notice
for "Good Reason" (as defined below) by giving notice to the Company
stating the basis for such Good Reason termination. The Company will
have the opportunity to cure the items set forth in the Good Reason
notice within a twenty (20) business day cure period. "Good Reason"
shall mean (i) any material breach of this Agreement by the Company;
(ii) any material reduction in the nature or scope of Employee's
title, authority, powers, functions, duties, reporting requirements or
responsibilities or (iii) following 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 stock; (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. Notwithstanding the foregoing to the
contrary, Good Reason shall not exist unless Employee first provides
the Board with notice of the facts alleged to constitute Good Reason
and until such breach, reduction or requirement remains uncured for
twenty (20) business days following the Board's receipt of such
written notice from Employee. This twenty (20) business day cure
period shall not apply to a change in control.
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d. Resignation by Employee. Employee shall have the right to voluntarily
terminate his employment upon forty-five (45) days written notice to
the Employer.
e. Termination by Non-renewal. Termination by non-renewal by either
Employer or Employee means notice of intent not to renew this
Agreement within the time specified in Section 2.
f. Consequences of Termination by Employee for Good Reason, by Employer
Without Cause, or as a Result of Notice of Employer's Choice Not to
Renew the Agreement. Should Employee's employment be terminated
without Cause by Employer, for Good Reason by Employee, or as a result
of the failure of the Employer to renew the Agreement, Employee shall
be entitled to continued base pay for a maximum of of six (6) months
or the period left on the Agreement, whichever is less, Bonus
Compensation under Paragraph 3(c) corresponding to the period of
employment, and Employer paid COBRA benefits for a period of six (6)
months following termination. There shall be no duty to mitigate by
Employee.
g. Consequences of Termination for Cause by Employer, Resignation by
Employee or Termination by Non-renewal by Employee. In the event
Employee is terminated for cause, Employee resigns or Employee
exercises his right not to renew this Agreement, Employee shall not be
entitled to receive any compensation or benefits under this Agreement
except his earned and unpaid Base Salary up to date of said
termination.
13. Arbitration of Disputes. All disputes arising out of or relating to this
Agreement, with the exception of relief sought pursuant to section 9 above,
shall be resolved only by final and binding arbitration using the following
procedure:
a. The Parties shall first attempt to select an arbitrator by the mutual
agreement. If the arbitrator is not selected by mutual agreement of
the parties within thirty (30) days of either party providing notice
of intent to arbitrate, then the arbitrator will be selected from a
panel of experienced employment arbitrators supplied by the American
Arbitration Association (AAA), utilizing the AAA National Rules for
the Resolution of Employment Disputes. Once either party provides
notice to the other of the intent to arbitrate, and if no arbitrator
is mutually agreed upon, it shall be the joint obligation of the
Parties to file for arbitration with AAA with the Employer paying the
filing and administrative fees and related expenses established by AAA
except as set forth in subparagraph (d) below.
b. The arbitrator will decide the time and place of the hearing in Wayne
or Oakland County or such other location as may be mutually agreed to
by the Parties.
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c. The Arbitrator shall have power to award all relief as allowed by law
or contract, including the award of reasonable costs and attorney fees
to the prevailing party.
d. Should the arbitrator rule in favor of Employee, the Employer shall be
responsible for the entire arbitrator's fee. Should the arbitrator
rule in favor of the Employer, Employee shall be responsible for one
half of the arbitrator's fee.
e. The award of the Arbitrator may be entered in the Circuit Court for
the County of Oakland, Michigan.
The arbitration procedures described in this section shall be the
exclusive dispute resolution mechanism under this Agreement. The Parties
waive all rights to trial, including trial by jury, with respect to
disputes arising out of or relating to this arrangement.
14. Cooperation Following Termination. Following termination of employment of
Employee's employment hereunder for any reason, Employee agrees to
reasonably cooperate with Employer upon the reasonable request of the Board
and to be reasonably available to Employer with respect to matters arising
out of Employee's services to any member of the Employer Group. Employer
shall reimburse, or at Employee's request, advance Employee for expenses
reasonably incurred in connection with such matters.
15. 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.
16. Indemnification. Employer shall indemnify Employee to the fullest extent
permitted by Michigan law and the articles of incorporation and bylaws of
the Employer. Such indemnification may include the following:
a. Indemnification Involving Third Party Claims. Employer shall indemnify
Employee if Employee is a party to or is threatened to be made a party
to or otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (each a "Claim"), other than a Claim by or in the name
of Employer or any entity in the Employer Group, by reason of the fact
that Employee is or was serving as an employee or agent of Employer or
any entity in the Employer Group (each an "Indemnifiable Event"),
against all expenses, including attorneys' fees, judgments, fines, and
amounts paid in settlement (collectively, "Expenses") actually and
reasonably incurred by Employee in connection with the investigation,
defense, settlement or appeal of such Claim, if Employee either is not
liable pursuant to
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Michigan law or acted in good faith and in a manner Employee
reasonably believed to be in or not opposed to the best interests of
Employer and, in the case of a criminal Claim, in addition had no
reasonable cause to believe that his or her conduct was unlawful.
Should the parties determine that there is a conflict, real or
potential, Employee shall have the right to select his own independent
counsel and the Employer shall provide direct payment to such counsel
for all reasonable attorney fees and costs.
b. Determination of Appropriateness of Indemnification. Notwithstanding
the foregoing, the obligations of Employer shall be subject to the
condition that, unless ordered by a court, a determination shall have
been made that indemnification is proper under the specific
circumstances, pursuant to and in accordance with Michigan law, as in
effect from time to time.
c. Indemnification for Defense Only. The indemnification authorized by
this Section does not include any actions, suits or proceedings
initiated by Employee against Employer or any entity in the Employer
Group.
d. Settlement of Claims. Neither Employee nor Employer shall settle any
Claim without the prior written consent of the other (such consent not
to be unreasonably withheld or delayed).
17. 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 Employee unenforceable or invalid because of the
geographic scope or time duration of such restriction. In such event,
Employer shall have the option:
(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 Section 12 which shall not
be considered termination for Cause.
Exercise of any of these options shall not affect Employer's or Employee's
right to seek damages or such additional relief as may be allowed by law in
respect to any breach by of the enforceable provisions of this Agreement.
18. 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) the
business day following the day when deposited with a reputable and
established overnight express courier (charges prepaid), or (iii) five (5)
days following mailing by certified or registered mail, postage prepaid and
return receipt
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requested. Unless another address is specified, notices shall be sent to
the addresses indicated below:
To Employer:
The Majestic Star Casino, LLC
c/o Fitzgeralds Casino Hotel
301 Fremont Street, 12th Floor
Las Vegas, Nevada 89101
Attn: Don H. Barden
Title: President and CEO
Fax: (313) 496-8700
And to:
Elayna J. Youchah
Schreck Brignone
300 South Fourth Street, Suite 1200
Las Vegas, Nevada 89101
Fax: (702) 382-8135
eyouchah@schrecklaw.com
To Employee:
Steven J. Lemberg
366 Waddington Road
Bloomfield Hills, MI 48301
And to:
Donald A. Van Suilichem
40900 Woodward Ave.
Suite 105
Bloomfield Hills, MI 48304
dvslawyer@voyager.net
(248) 644-2419
or to such other address as either party shall have furnished to the
other in writing in accordance herewith.
19. No Waiver of Breach or Remedies. No failure or delay on the part of
Employer or Employee in exercising any right, power or remedy hereunder
shall operate as a waiver
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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.
20. 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 by a member of the Board (other than
Employee), and Employee, nor consent to any departure by the Employee from
any of the terms of this Agreement shall be effective unless the same is
signed by a member of the Board (other than Employee). Any such waiver or
consent shall be effective only in the specific instance and for the
specific purpose for which given.
21. Governing Law; Venue. The laws of the State of Michigan 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 Michigan located in
Wayne County in any action, suit or proceeding arising out of or relating
to this Agreement or any matters contemplated hereby, and agrees that any
such action, suit or proceeding shall be brought only in such court.
22. 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.
23. Assignment. This Agreement is personal to Employee and may not be assigned
by Employee.
24. Successors and Assigns. This Agreement may be assigned by Employer to its
successors and shall be binding upon the successors and assigns of
Employer.
25. Prior Agreements. 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 Employee or
any predecessor thereof, on the one hand, and Employee, on the other hand,
prior to the Closing Date relating to the subject matter hereof. Employee
acknowledges that all rights under such prior agreements and arrangements
shall be extinguished.
IN WITNESS WHEREOF, Employer and Employee have entered into this Agreement
in Detroit, Michigan, as of the date first written above.
"EMPLOYEE"
/s/ Steven J. Lemberg
----------------------
Signature
Employment Agreement
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"EMPLOYER"
By: /s/ Don H. Barden
-------------------
Name: Don H. Barden
Its: President and CEO
Employment Agreement
Page 14 of 14