ex10-1.htm


    Exhibit
10.1

     

    
      FOURTH
AMENDMENT TO

      EMPLOYMENT
AGREEMENT

      


      This
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is entered into as
of the 5th day of March, 2009, by and between Wynn Resorts, Limited (“Employer”) and Matt Maddox
("Employee").  Capitalized
terms that are not defined herein shall have the meanings ascribed to them in
the Agreement (as defined below).

       

      RECITALS

       

      WHEREAS,
Employer and Employee are party to that certain Employment Agreement, dated as
of October 1, 2005, by and between Wynn Las Vegas, LLC and Employee,
subsequently assigned to Employer, as amended by that certain First Amendment to
Employment Agreement, dated as of May 5, 2008, as further amended by that
certain Second Amendment to Employment Agreement, dated as of December 31, 2008,
and as further amended by that certain Amendment to Employment Agreement, dated
as of February 13, 2009 (collectively, the "Agreement"); and

       

      WHEREAS,
the parties have agreed to amend the Agreement as provided herein;

      


      NOW
THEREFORE, in consideration of the above and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:

      


      1.           Definitions.  Section
1 of the Agreement shall be amended to add the following definitions for “Change
of Control”, “Good Reason” and “Separation Payment”:

      


      “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
Wynn Resorts, Limited (“WRL”), or of any entity resulting from a merger or
consolidation involving WRL, representing more than fifty percent (50%) of the
combined voting power of the then outstanding securities of WRL or such
entity;

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      (ii)           the
individuals who, as of March 5, 2009, are members of WRL’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 WRL as determined in the
manner prescribed in WRL’s Articles of Incorporation and Bylaws; provided, however,
that if the election, or nomination for election, by WRL'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 WRL
is a party, whether or not WRL 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 or WRL, in one transaction or a
series of related transactions, to any Person other than WRL or an Affiliate,
where any 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 members or stockholders of
Employer or WRL 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 membership interests or 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 or WRL 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 membership interests or voting stock in Employer or
WRL 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.

      


      “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 7(a)
below);

       

      (ii)           Employer
discontinues its bonus plan in which Employee participates as in effect
immediately before the 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.

      


      “Separation
Payment” - means
a lump sum equal to (A) Employee’s Base Salary (as defined in Subparagraph 7(a)
of this Agreement) for the remainder of the Term, but not less than one (1) year
of Base Salary, plus (B) the bonus that was paid to Employee under
Subparagraph 7(b) for the preceding bonus period, projected over the
remainder of the Term (but not less than the preceding bonus that was paid),
plus (C) any accrued but unpaid vacation pay.

      


      2.           Special
Termination Provisions.  Section 6 shall be deleted in its
entirety and replaced with the following:

      


      Notwithstanding
the provisions of Section 5 of this Agreement, this Agreement shall terminate
upon the occurrence of any of the following events:

      


      (a)           the
death of Employee;

      


      (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 without Cause, provided, however, that,
six (6) months after such notice, Employer must tender the Separation
Payment to Employee;

       

       

      
 

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (e)         the
giving of written notice by Employee to Employer upon a material breach of this
Agreement by Employer, which material breach remains uncured for a period of
thirty (30) days after the giving of such notice, provided, however, that,
six (6) months after the expiration of such cure period without the cure
having been effected, Employer must tender the Separation Payment to
Employee;

      


      (f)         at
Employee’s sole election in writing as provided in paragraph 16 of this
Agreement, after both a Change of Control and as a result of Good Reason, provided, however, that,
six (6) months after Employer’s receipt of Employee’s written election,
Employer must tender the Separation Payment to Employee; or

      


      (g)         the
giving of written notice by Employer to Employee of the termination of this
Agreement following a termination of Employee’s License (as defined in
Subparagraph 8(b) of this Agreement).

      


      In the
event of a termination of this Agreement pursuant to the provisions of
Subparagraph 6(a), (b), (c) or (g), Employer shall not be required to make
any payments to Employee other than payment of Base Salary and vacation pay
accrued but unpaid through the termination date.  In the event of a
termination of this Agreement pursuant to the provisions of Subparagraph (d),
(e) or (f), Employee will also be entitled to receive health benefits coverage
for Employee and Employee’s dependents under the same plan(s) or arrangement(s)
under which Employee was covered immediately before Employee’s termination, or
plan(s) established or arrangement(s) provided by Employer or any of its
Affiliates thereafter.  Such health benefits coverage shall be paid
for by Employer to the same extent as if Employee were still employed by
Employer, and Employee will be required to make such payments as Employee would
be required to make if Employee were still employed by Employer.  The
health benefits provided under this Paragraph 6 shall continue until the
earlier of (x) the expiration of the period for which the Separation
Payment is paid, (y) the date Employee becomes covered under any other
group health plan not maintained by Employer or any of its Affiliates; provided,
however,
that if such other group health plan excludes any pre-existing condition that
Employee or Employee’s dependents may have when coverage under such group health
plan would otherwise begin, coverage under this Paragraph 6 shall continue
(but not beyond the period described in clause (x) of this sentence) with
respect to such pre-existing condition until such exclusion under 

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      such
other group health plan lapses or expires.  In the event Employee is
required to make an election under Sections 601 through 607 of the Employee
Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to
qualify for the health benefits described in this Paragraph 6, the
obligations of Employer and its Affiliates under this Paragraph 6 shall be
conditioned upon Employee’s timely making such an election.  In the
event of a termination of this Agreement pursuant to any of the provisions of
this Paragraph 6, Employee shall not be entitled to any benefits pursuant
to any severance plan in effect by Employer or any of Employer’s
Affiliates.

      


      3.           Term.  Section
5 of the Agreement is amended to provide that the Term will expire on November
30, 2013.

      


      4.           Base
Salary.  Section 7(a) of the Agreement is amended to provide
that effective December 1, 2008, Base Salary paid to Employee shall be Eight
Hundred Fifty Thousand Dollars ($850,000) per annum. Provided that, effective
February 16, 2009, the Base Salary paid to Employee shall be reduced to Seven
Hundred Twenty-Two Thousand Five Hundred Dollars ($722,500) per
annum.

      


      5.           Vacation.  Section
7(3) of the Agreement is amended to provide that in no event shall Employee
receive fewer than four (4) weeks of paid vacation in any full year of the
Term.

      


      6.           Other Provisions of
Agreement.  The parties acknowledge that the Agreement is being
modified only as stated herein, and agree that nothing else in the Agreement
shall be affected by this Amendment.

      


      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as
of the date first written above.

       

      
        
          
            
              
                
                  	
                          WYNN
      RESORTS, LIMITED

                        	 
      	
                          EMPLOYEE

                        
	 	 	 
	By:	
                            /s/
      Marc D. Schorr

                        	 
      	
                          /s/
      Matt Maddox

                        	
                           

                        
	
                                   
      Marc D. Schorr

                        	 
      	
                          Matt
      Maddox

                        
	
                                  
       Chief Operating Officer