EX-10.11



 






	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 



EXHIBIT 10.11



EMPLOYMENT AGREEMENT





     EMPLOYMENT AGREEMENT dated as of January 16, 2006 (this “Agreement”), between AMERICAN CASINO
& ENTERTAINMENT PROPERTIES LLC (the “Company”), having an address at 2000 Las Vegas Boulevard
South, Las Vegas, Nevada 89104, and Ms. Denise Barton (the “Employee”), having an address at 3149
Sterlingshire Drive, Las Vegas, NV 89146.



1. Employment



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 Chief Financial Officer of the
Company and shall also act as Chief Financial Officer of such affiliates of the Company as may be
designated (the “Designated Affiliates”) from time to time by the board of directors of American
Entertainment Properties Corp., the sole member of the Company (the “Board”). Employee shall
perform such duties as are specified from time to time by the Company, the Board and the Designated
Affiliates. Employee shall serve in such capacities at the pleasure of the Board. Employee shall
report to and be under the supervision of the President of the Company or the President’s designee
and such other persons as shall be designated from time to time by the Board.



During the Term of Employment, Employee shall devote all of her professional attention, on a full
time basis, to the business and affairs of the Company and the Designated Affiliates, shall use her
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 compliance, conflicts of interest, confidentiality
and business ethics as are from time to time in effect.



During the Term of Employment, the Employee shall not, without the prior written consent of the
Company, directly or indirectly render services to, or otherwise act in a business or professional
capacity on behalf of or for the benefit of, any other Person (as hereafter defined) as an
employee, advisor, independent contractor, agent, consultant, representative or otherwise, whether
or not compensated.




2. Term



The employment period shall commence as of January 16, 2006 and shall continue through the period
(the “Term of Employment”) ending on March 31, 2007 (the “Expiration Date”), unless earlier
terminated as set forth in this Agreement.




3. Compensation




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For all services to be performed by Employee under this Agreement, during the Term of Employment,
the Employee shall be compensated in the following manner:




(a) Base Compensation



The Company will pay Employee a salary (the “Base Salary”) at an annual rate of $350,000. The Base
Salary shall be payable in accordance with the normal payroll practice of the Company (but no less
frequently than bi-weekly). The Base Salary shall be reviewed on an annual basis for increase under
the Company’s normal performance review process, which occurs in March of each year and shall
become effective during the first pay period in April. The Company is under no obligation to grant
any such increases and any such increases may be granted or withheld in the sole discretion of the
Company.




(b) Bonus Compensation



In the event that, during the Term of Employment, the Company shall develop a management incentive
plan applicable to all executive management employees of the Company, Employee shall be eligible to
participate in such plan, if any, on a basis proportionate to her compensation level and level of
activity to contribute to the Company’s success, as determined in the sole discretion of the Board
(“Bonus Compensation”).




(c) Taxes



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.




4. Termination



This Agreement shall terminate (subject to Section 10(f) 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 her
essential job functions for the Company for a period of at least 45 consecutive business
days;
	 
	 	(c)	 	The discharge of Employee by the Company with or without Cause (as defined below); or
	 
	 	(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




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	 	 	 	of her resignation).




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 (x) perform the duties
assigned to her or (y) comply with the instructions given to her; (ii) personal misconduct or
insubordination; (iii) impairment due to alcohol or substance abuse; (iv) conviction of a crime or
being charged with a felony; (v) violation of a federal or state securities law or regulation; (vi)
commission of an act of moral turpitude or dishonesty relating to the performance of her duties
hereunder; (vii) failure to comply with any of the terms of this Agreement; (viii) breach of any of
her obligations set forth in Section 6 below; (ix) any revocation or suspension by any state or
local authority of Employee’s required license(s) to be the Chief Financial Officer (or similar
position) of the Company; or (x) 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 the Employee, the Company, any Designated
Affiliate or any of their affiliates.




5. Effect of Termination



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), other than a resignation within six (6) months
following a Change of Control (as hereafter defined), which shall be governed by
paragraph 5(b) below, or (iv) due to the discharge of Employee by the Company for
Cause, then, in lieu of any other payments of any kind (including, without limitation,
any severance payments), Employee shall be entitled to receive, within thirty (30) 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, 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) due to the discharge of the
Employee by the Company without Cause (which the Company is free to do at any time in
its sole and absolute discretion) or (ii) by the Employee for Good Reason (as
hereinafter defined) within six (6) months following a Change of Control, then, in lieu
of any other payments of any kind (including, without limitation, any severance
payments), Employee shall be entitled to receive, within thirty (30) days following the
date on which the Termination Event in question occurred (the “Clause (b) Termination
Date”):




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	 	(i)	 	any amounts of Base Salary and previously earned Bonus
Compensation due and unpaid to Employee from the Company as of the Clause (b)
Termination Date; and
	 
	 	(ii)	 	a lump-sum payment in the amount equal to one year’s Base Salary,
payment of which shall be conditioned upon execution of a settlement and
release agreement in form and substance acceptable to the Company.




For the purpose of this Paragraph 5, any Bonus Compensation shall be deemed earned and to become
due with respect to any year on the last business day of February of the year following the year
with respect to which the applicable performance targets (“Targets”) are computed, provided that
Employee is employed by the Company on such last business day of February. By way of example, any
Bonus Compensation with respect to 2005 Targets shall be deemed earned and to become due on
February 28, 2006.




6. Non-Disclosure



During the Term of Employment and at all times thereafter, Employee shall hold in a fiduciary
capacity for the benefit of the Company, each Designated Affiliate and each of their affiliates,
respectively, all secret or confidential information, knowledge or data, including, without
limitation, trade secrets, identity of investments, identity of contemplated investments, business
opportunities, valuation models and methodologies, relating to the business of the Company, the
Designated Affiliates or their affiliates, and their respective business as, (i) obtained by
Employee at any time during Employee’s employment by the Company and (ii) not otherwise in the
public domain (“Confidential Information”). Employee also agrees to keep confidential and not
disclose to any unauthorized Person any personal information regarding any controlling Person of
the Company, the Designated Affiliates or any of their affiliates and any member of the immediate
family of any such Person (and all such personal information shall be deemed “Confidential
Information” for the purposes of this Agreement). Employee shall not, without the prior written
consent of the Company: (i) except to the extent compelled pursuant to the order of a court or
other body having jurisdiction over such matter or based upon the advice of counsel that such
disclosure is legally required, communicate or divulge any Confidential Information to anyone other
than the Company and those designated by the Company; or (ii) use any Confidential Information for
any purpose other than the performance of her duties as an employee of the Company. Employee will
assist the Company, at the Company’s expense, in obtaining a protective order, other appropriate
remedy or other reliable assurance that confidential treatment will be accorded any Confidential
Information disclosed pursuant to the terms of this Agreement.



In no event shall Employee during or after her employment hereunder, disparage the Company, the
Designated Affiliates, any controlling Person of the Company, the Designated Affiliates, their
respective affiliates and family members or any of their respective officers, directors or
employees.




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All processes, technologies, intellectual property and inventions (collectively, “Inventions”)
conceived, developed, invented, made or found by Employee, alone or with others, during the Term of
Employment, whether or not patentable and whether or not on the Company’s time or with the use of
the Company’s facilities or materials, shall be the property of the Company and shall be promptly
and fully disclosed by the Employee to the Company. Employee shall perform all necessary acts
(including, without limitation, executing and delivering any confirmatory assignments, documents,
or instruments requested by the Company) to vest title to any such Inventions in the Company and to
enable to the Company, at its expense, to secure and maintain domestic and/or foreign patents or
any other rights for such Inventions.




7. Non-Compete



(a) During the Term of Employment and, unless Employee’s employment is terminated by the Company
without Cause or this Agreement is not renewed or extended following the Expiration Date, for a
period of one (1) year following the last day of Employee’s employment by the Company, Employee
will not, either directly or indirectly, as principal, agent, owner, employee, partner, investor,
shareholder (other than solely as a holder of not more than 1% of the issued and outstanding shares
of any public corporation), consultant, advisor or otherwise howsoever own, operate, carry on or
engage in the operation of or have any financial interest in or provide, directly or indirectly,
financial assistance to or lend money to or guarantee the debts or obligations of any Person
carrying on or engaged in any business that is competitive with or similar to the business
conducted by the Company, the Designated Affiliates or any of their subsidiaries which is located
in or within fifty (50) miles of any locations in which the Company, the Designated Affiliates or
any of their subsidiaries are doing business.



(b) Employee covenants and agrees with the Company and its subsidiaries that, during Employee’s
employment by the Company and for one (1) year following the last day of Employee’s employment by
the Company, Employee shall not directly, or indirectly, for herself or for any other Person:





	 	(i)	 	solicit, interfere with or endeavor to entice away from the Company, any Designated
Affiliate or any of their subsidiaries or affiliates, any customer, client or any Person in
the habit of dealing with any of the foregoing;
	 
	 	(ii)	 	interfere with, entice away or otherwise attempt to obtain the withdrawal of any
employee of the Company, any Designated Affiliate or any of their subsidiaries or
affiliates; or
	 
	 	(iii)	 	advise any Person not to do business with the Company, any Designated Affiliate or any
of their subsidiaries or affiliates.




Employee represents to and agrees with the Company that the enforcement of the restrictions
contained in Section 6 and Section 7 (the Non-Disclosure and Non-Compete sections respectively)
would not be unduly burdensome to Employee and that such restrictions are reasonably necessary to
protect the legitimate interests of the Company. Employee agrees that


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the remedy of damages for any breach by Employee of the provisions of either of these
sections may be inadequate and that the Company shall
be entitled to injunctive relief, without posting any bond. This section constitutes an
independent and separable covenant that shall be enforceable notwithstanding any right or remedy
that the Company may have under any other provision of this Agreement or otherwise.




8. Benefits



During the Term of Employment, Employee shall be entitled to receive certain healthcare and other
similar employee welfare benefits comparable to those received by other employees of the Company at
a similar pay level and/or position with the Company as such may be provided by the Company in its
sole and absolute discretion from time to time.



In the event that, during the Term of Employment, the Company awards to its executives stock
options or restricted stock in anticipation of a public offering, Employee shall be eligible to
receive an award of such options or restricted stock; provided, however, that the decision to make
any such award to Employee and the amount of any such award shall be subject to the review and
approval of the Board, in its sole and absolute discretion.




9. Definitions



For purposes of this Agreement only, the following definitions shall apply:



“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as
that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have
beneficial ownership of all securities that such “person” has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is exercisable only
after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a
corresponding meaning.



“Change of Control” means the consummation of any transaction (including, without limitation, any
merger or consolidation), the result of which is that any Person, other than Carl Icahn or the
Related Parties, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the
Voting Stock of the Company, measured by voting power rather than number of shares.



The Employee shall have “Good Reason” to terminate her employment following a Change of Control
only if: (i) the Company fails to provide compensation or benefits that the Company is obligated to
provide under paragraph 3 above and the failure is not remedied within 30 days after the Company
receives written notice from the Employee of such failure; or (ii) the Company assigns the Employee
duties, responsibilities or reporting relationships not contemplated by paragraph 1 above without
her consent, or limits her duties or responsibilities contemplated by paragraph 1 above in any
respect materially detrimental to her, and in either case the situation is not remedied within 30
days after the Company receives written notice from the Employee of the situation; or (iii) the
Company relocates her office to an area that is more than 50 miles in radius


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from the Las Vegas Metropolitan area without
her written consent and the situation is not remedied within 30 days after the Company receives
written notice from the Employee of the situation.



“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto.



“Person” means any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act, other than employee benefit plans sponsored or maintained by the Company or by
entities controlled by the Company.



“Related Parties” means: (1) Carl Icahn, any spouse and any child, stepchild, sibling or descendant
of Carl Icahn; (2) any estate of Carl Icahn or of any person identified in clause (1); (3) any
person who receives a beneficial interest in any estate identified in clause (2) to the extent of
such interest; (4) any executor, personal administrator or trustee who holds such beneficial
interest in the Company for the benefit of, or as fiduciary for, any person identified in clauses
(1), (2) or (3) to the extent of such interest; (5) any corporation, partnership, limited liability
company, trust, or similar entity, directly or indirectly owned or controlled by Carl Icahn or any
other person or persons identified in clauses (1), (2), (3) or (4); and (6) any not-for-profit
entity not subject to taxation pursuant to Section 501(c)(3) of the Internal Revenue Code or any
successor provision to which Carl Icahn or any person identified in clauses (1), (2), (3) or (4)
above contributes his beneficial interest in the Company or to which such beneficial interest
passes pursuant to such person’s will.



“Voting Stock” means, with respect to any Person that is (a) a corporation, any class or series of
capital stock of such Person that is ordinarily entitled to vote in the election of directors
thereof at a meeting of stockholders called for such purpose, without the occurrence of any
additional event or contingency, (b) a limited liability company, membership interests entitled to
manage, or to elect or appoint the Persons that will manage the operations or business of the
limited liability company, or (c) a partnership, partnership interests entitled to elect or replace
the general partner thereof.




10. Miscellaneous





	 	(a)	 	This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all previous written, and all previous or
contemporaneous oral negotiations, understandings, arrangements, and agreements.
	 
	 	(b)	 	This Agreement and all of the provisions hereof shall inure to the benefit of and be
binding upon the legal representatives, heirs, distributees, successors (whether by merger,
operation of law or otherwise) and assigns of the parties hereto; provided, however, that
Employee may not delegate any of Employee’s duties hereunder, and may not assign any of
Employee’s rights hereunder, without the prior written consent of the Company, which may be
withheld in its sole and absolute discretion.




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	 	(c)	 	This Agreement will be interpreted and the rights of the parties determined in
accordance with the laws of the United States applicable thereto and the internal laws of
the State of New York.
	 
	 	(d)	 	Employee covenants and represents that she is not a party to any contract, commitment
or agreement, nor is she subject to, or bound by, any order, judgment, decree, law,
statute, ordinance, rule, regulation or other restriction of any kind or character, which
would prevent or restrict her from entering into and performing her obligations under this
Agreement.
	 
	 	(e)	 	Employee acknowledges that she has had the assistance of legal counsel in reviewing and
negotiating this Agreement.
	 
	 	(f)	 	This Agreement and all of its provisions, other than the provisions of Section 5,
Section 6, Section 7 and Section 10 hereunder (which shall survive termination), shall
terminate upon Employee ceasing to be an employee of the Company for any reason.




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AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC

By: American Entertainment Properties Corp., its sole member




	 	 	 	 	 
	By:
	 	/s/ Richard P. Brown
 

Richard P. Brown

President and CEO

	 	  
	 	 	 
	 	 
	EMPLOYEE:	 	 
	 	 	 
	 	 
	By:
	 	/s/ Denise Barton
 


	 	  
	 	 	Denise Barton

	 	 





[Signature page to Employment Agreement between ACEP and Denise Barton]





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