TRANSITION AND SEPARATION AGREEMENT

Exhibit 10.1

This TRANSITION AND SEPARATION AGREEMENT (“Agreement”), dated April 7, 2008, is entered into by and between XXXXXXXXX XXXXX INCORPORATED and C. XXXXXXX XXXX (“Xxx”) (together the “Parties”).

WHEREAS, Xxx is employed by Xxxxxxxxx Xxxxx Incorporated and certain of its subsidiaries (collectively, “Xxxxxxxxx Downs”) on an at-will basis.

WHEREAS, the Parties have decided mutually to terminate Ken's at-will employment relationship with Xxxxxxxxx Xxxxx as of close of business on August 1, 2008, and that such termination shall constitute a "Job Elimination" as defined in the Xxxxxxxxx Downs Executive Severance Policy (the actual termination date hereinafter referred to as the "Separation Date").

WHEREAS, the Parties desire to finalize their arrangements for Ken's employment transition and to resolve, fully and finally, all outstanding matters between them.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth hereinafter, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties intending to be legally bound, hereby agree as follows:

PARAGRAPH 1. EMPLOYMENT TRANSITION AND SEPARATION.

Xxx acknowledges and represents that as of the date of this Agreement, he has fully complied with all policies and procedures and codes of conduct of Xxxxxxxxx Downs. Pursuant to this Agreement, Ken's separation from Xxxxxxxxx Xxxxx shall be effective as of the Separation Date. The period between the date of this Agreement and the Separation Date shall be the "Transition Period." During the Transition Period, Xxx will perform such duties as defined by the Executive Vice President of Racing Operations for Xxxxxxxxx Xxxxx Incorporated. During the Transition Period, Xxx agrees that he will fully comply with all policies and procedures and codes of conduct of Xxxxxxxxx Xxxxx, will perform his employment duties in good faith, using his best efforts and to the reasonable satisfaction of the Executive Vice President of Racing Operations for Xxxxxxxxx Downs Incorporated; Ken's employment duties will be generally consistent with the employment duties for which Xxx is presently responsible. Any material breach of this section or of Ken's obligations to Xxxxxxxxx Downs will be considered a material breach of this Agreement and Xxx will not be entitled to any part of the Completion Bonus, the benefits set forth in Paragraph 2 below or the pro-rated Incentive Compensation Plan (ICP) bonus

set forth in Paragraph 3(c) below. In the event of any material breach of this section or Ken's obligations to Xxxxxxxxx Downs, Xxxxxxxxx Xxxxx agrees to provide written notice of such material breach to Xxx, and Xxx will have a period of five (5) business days from receipt of such notice within which to cure any such material breach, if such breach is curable, as determined by Xxxxxxxxx Downs. In consideration of Ken’s compliance with the obligations set forth in this Paragraph 1 and his full waiver and release of all claims set forth in the attached Waiver and General Release (the "Release") and the other agreements and covenants contained herein, Xxxxxxxxx Xxxxx will pay to Xxx, in a lump sum payment, THREE HUNDRED TEN THOUSAND and 00/100s DOLLARS ($310,000.00) (the “Completion Bonus” amount) less deductions required by law or otherwise authorized by Xxx. Such payment will be made on the same terms as the Severance Amount set forth in Paragraph 2(a) of this Agreement.

PARAGRAPH 2. SEVERANCE PACKAGE.

For and in consideration of the promises by Xxx in this Agreement and the Release attached hereto, the sufficiency of which Xxxxxxxxx Downs hereby acknowledges, and in lieu of any compensation and benefits to which Xxx xxx otherwise claim to be entitled based upon his employment with Xxxxxxxxx Downs, including, but not limited to any benefits pursuant to the Xxxxxxxxx Xxxxx Executive Severance Policy, Xxxxxxxxx Xxxxx agrees that it will do the following for Xxx, to which he is not otherwise entitled:

(a) Xxxxxxxxx Xxxxx will pay to Xxx the gross amount of ONE HUNDRED TWENTY-FIVE THOUSAND ONE-HUNDRED SEVENTEEN and 00/100s DOLLARS ($125,117.00) (an amount equal to twenty-six (26) weeks salary) (“the Severance Amount”). The payment of the Severance Amount will be made in a lump sum payment, less deductions required by law or otherwise authorized by Xxx, by mailing same to him at his home address within ten (10) days following the effective date of the Release and following receipt by Xxxxxxxxx Downs of the Agreement and the Release, both fully executed by Xxx, it being understood that no payment under this Paragraph 2(a) will be made to Xxx until the expiration of the seven (7) day revocation period set forth in Section 2.b. of the Release.

(b) Xxxxxxxxx Xxxxx will pay the monthly premium for Xxx for his current group health care plan, including the group dental plan, on the same terms and conditions as such health care plan, including the group dental plan, are currently provided from the effective date of the Release through February 28, 2010, (or until Xxx becomes covered under another health care plan, whichever first occurs) provided Xxx makes a timely COBRA continuation election following the effective date of his separation of employment with Xxxxxxxxx Xxxxx. Such COBRA continuation coverage will be offered to Xxx on the same basis as such coverage is offered to any other eligible employee. The

coverage afforded Xxx under COBRA will be on the same basis as such coverage is afforded to other employees under COBRA pursuant to the health insurance plan of Xxxxxxxxx Downs.

(c) In lieu of any outplacement services, Xxxxxxxxx Xxxxx will pay to Xxx the gross amount of EIGHT THOUSAND AND 00/100s DOLLARS ($8,000.00), which amount will be made on the same terms as the Severance Amount set forth in Paragraph 2(a) of this Agreement.

(d) As of the Separation Date, the Parties acknowledge that Xxx shall be entitled to 5,480 shares of Xxxxxxxxx Downs common stock pursuant to his Restricted Stock Agreement, dated November 9, 2005, and Restricted Stock Agreement, dated November 26, 2004, which shares will be delivered on the same terms as the Severance Amount set forth in Paragraph 2(a) of this Agreement.

PARAGRAPH 3. OTHER PAYMENTS.

(a) Between the execution date of this Agreement and Ken’s last day of employment, Xxx will be paid at his current salary and on the same basis as he is presently being paid.

(b) Xxx will be paid for all accrued but unused PTO days within ten (10) days following the Separation Date.

(c) Xxx will be paid a pro-rated Incentive Compensation Plan (ICP) bonus at the Target Discretionary Goal (as defined in the ICP) for the period January 1, 2008 through August 1, 2008. The pro-rated ICP bonus will be FIFTY-EIGHT THOUSAND THREE HUNDRED EIGHTY-EIGHT AND 00/100s DOLLARS ($58,388.00). Such payment will be made on the same terms as the Severance Amount set forth in Paragraph 2(a) of this Agreement.

(d) Pursuant to Paragraph 13, any amounts payable to Xxx pursuant to Ken's Deferred Compensation Account, Post 2004 shall be delayed for a period of six months from the Separation Date pursuant to the terms of Xxxxxxxxx Downs Incorporated Deferred Compensation Plan (As Amended and Restated Effective November 14, 2007).

(e) As of the Separation Date, Xxx shall no longer be provided with use of his Xxxxxxxxx Downs provided automobile or any automobile allowance, and shall no longer be eligible for reimbursement received from Xxxxxxxxx Xxxxx for club dues or professional memberships.

PARAGRAPH 4. RELEASE; OTHER OBLIGATIONS.

In consideration of the promises made by Xxxxxxxxx Downs in Paragraph 1 of this Agreement, the sufficiency of which Xxx hereby acknowledges, Xxx agrees as follows:

(a) Xxx understands and agrees that he will sign the attached Release no earlier than the Separation Date and that he may review and consider the Release in accordance with the terms and conditions specified therein.

(b) Xxx agrees to return to Xxxxxxxxx Xxxxx all property of Xxxxxxxxx Downs in his possession, including but not limited to, Xxxxxxxxx Xxxxx credit cards, cellular telephone, keys for any facility of any of the Released Parties, facility access cards, leased vehicle, all records, electronic files, documents, computers, software, computer discs, financial information, information regarding the business of Xxxxxxxxx Downs, and any other similar proprietary and confidential information, or any other property of the Released Parties (as defined in the Release) in his possession or control as a result of his employment with Xxxxxxxxx Xxxxx, and Xxx represents that he has delivered all of said property to Xxxxxxxxx Downs as of the Separation Date.

(c) Xxx also agrees that he will not assist or participate in any way in any claim brought by any current or former employee of the Released Parties, except as required by law.

(d) Each party (meaning, in the case of Xxxxxxxxx Downs, its current officers) further agrees not to make any negative or derogatory statements to any persons regarding the other party hereto, Ken’s employment with Xxxxxxxxx Xxxxx or his separation from employment with Xxxxxxxxx Downs. Each party (meaning, in the case of Xxxxxxxxx Xxxxx, its current officers) agrees not to do or say anything that a reasonable person would expect to diminish or constrain the good will and good reputation of the other party hereto. Xxx understands and acknowledges that his agreement under the two immediately preceding sentences of this Paragraph 4(d) extends to the Released Parties. Xxxxxxxxx Xxxxx and Xxx will mutually agree to the content of any press release or public communication (other than the Form 8-K) regarding the separation of employment of Xxx with Xxxxxxxxx Xxxxx.

(e) The Parties further understand that it shall be an unlawful practice, judicially enforceable, for a party to this Agreement to violate the terms hereof, and that this document may be used in evidence by either party in any action for enforcement of any provision of this Agreement. If suit is brought by Xxx or Xxxxxxxxx

Downs for breach of the Agreement or to enforce the terms of the Agreement, it is hereby expressly agreed the unsuccessful party shall be liable for damages, court costs and reasonable attorney’s fees incurred by the prevailing party in the successful enforcement, in whole or in part, of this Agreement.

(f) It is understood that Paragraphs 4(c) and 4(d) are material elements of this Agreement and are material consideration for Xxx and Xxxxxxxxx Xxxxx to enter into this Agreement. Xxx acknowledges that a breach of Paragraph 4(c) or 4(d) will result in irreparable injury to Xxxxxxxxx Xxxxx and Xxxxxxxxx Xxxxx acknowledges that a breach of 4(d) will result in irreparable injury to Xxx. Therefore, Xxx and Xxxxxxxxx Xxxxx each consents and agrees that, for any violation of Paragraph 4(c) or 4(d) of this Agreement, the rights of Xxx or Xxxxxxxxx Xxxxx under the terms of this Agreement may be specifically enforced with injunctive relief. This remedy shall be in addition to the right of Xxx or Xxxxxxxxx Xxxxx to pursue any other available legal and equitable remedies, including the recovery of damages.

PARAGRAPH 5. COVENANT NOT TO DISCLOSE COMPANY

CONFIDENTIAL INFORMATION.

Xxx acknowledges that by reason of his employment with Xxxxxxxxx Xxxxx, he was provided with or has otherwise become aware of (i) information relating to those who do business with Xxxxxxxxx Downs and the nature of their business, and the business and operations of Xxxxxxxxx Xxxxx generally; (ii) administrative and corporate matters of every kind and character of Xxxxxxxxx Downs; and (iii) administrative and corporate matters between Xxxxxxxxx Xxxxx and its customers, vendors and others, which constitute trade secrets, or confidential or proprietary information (hereafter collectively referred to as “Confidential Information”) and the sole and exclusive property of Xxxxxxxxx Downs, and that the disclosure or use hereof by Xxx to the detriment of Xxxxxxxxx Downs would be unfair and injurious to Xxxxxxxxx Xxxxx and would merit injunctive relief.

Accordingly, all Confidential Information of Xxxxxxxxx Downs not otherwise publicly available, including but not limited to, customer names and addresses; employee names and addresses; lists or compilations of customers of Xxxxxxxxx Xxxxx of any kind made by Xxx or provided to Xxx during his employment with Xxxxxxxxx Downs; information of any kind and in whatever form recorded regarding the operations of Xxxxxxxxx Xxxxx not generally known by or available to the public; transactions or business dealings between Xxxxxxxxx Downs and persons or entities with which Xxxxxxxxx Xxxxx had or has business dealings; administrative and corporate information; Board of Directors information; matters relating to Xxxxxxxxx Downs’s information regarding short-term and long-term business plans and goals and strategies; information regarding personnel and management salaries and pay practices; corporate profitability, purchases

and sales; and procedural manuals which became known to Xxx during his employment with Xxxxxxxxx Downs, and whether such Confidential Information came to be known by Xxx orally, visually or in writing, shall remain the sole and exclusive Confidential Information of Xxxxxxxxx Downs. Except as authorized by Xxxxxxxxx Xxxxx, Xxx agrees not to use, at any time subsequent to his separation from employment, any such Confidential Information for any purpose whatsoever and Xxx further agrees not to, and shall not, disclose any such Confidential Information to any party who is not a party to this Agreement. Subject to Paragraph 6 below, Xxxxxxxxx Xxxxx acknowledges that the foregoing is not intended to prohibit Xxx from obtaining employment or otherwise working in the industry so long as Confidential Information is not disclosed in violation of this Agreement.

PARAGRAPH 6. NON-COMPETITION

Due to Ken’s specific knowledge of the business and proprietary and confidential information of Xxxxxxxxx Xxxxx, Xxx agrees that for a period of two (2) years beginning with the day following his last day of employment with Xxxxxxxxx Downs (the “Non-Competition Period”), Xxx will not, either directly or indirectly, provide services in any form as an employee, independent contractor, consultant, advisor, or in any other capacity, or provide capital or financial assistance of any kind, to the following businesses and organizations: Xxxxxxxxxx Xxxx Xxxxxx & Xxxxxx, Xxxxxxxxxx, Xxxxxxx; Hawthorne Race Course, Chicago, Illinois; Florida Horsemen’s Benevolent & Protective Association Inc.; The Horsemen’s Group; National HBPA; and any group representing horsemen’s interests at a particular track (the "Restricted Businesses"). Xxx further agrees that for the duration of the Non-Competition Period, he will inform Xxxxxxxxx Downs in writing of his accepting employment with, or becoming an independent contractor, consultant, advisor or investor of, any of the Restricted Businesses and, under such circumstances, Xxx hereby expressly authorizes Xxxxxxxxx Downs to present a copy of this Agreement to any such entity.

Xxx further agrees that for the duration of the Non-Competition Period he will not, either directly or indirectly, on his own behalf or in the service or on behalf of others, solicit, divert or hire away, or attempt to solicit, divert or hire away, any person employed by Xxxxxxxxx Downs on or at any time after the last day of Ken’s employment with Xxxxxxxxx Xxxxx, to any business that either currently or at any time during the Non-Competition Period engages in any business activity which is the same as or competitive with any activity engaged in by Xxxxxxxxx Downs on or prior to the termination of Ken’s employment with Xxxxxxxxx Xxxxx. The foregoing is not intended to preclude any company from hiring any employee or former employee of Xxxxxxxxx Downs so long as such hiring is not the result of a violation by Xxx of the agreement not to solicit set forth herein.

Xxx hereby acknowledges and agrees that the nature and extent of the restrictions upon him are reasonable in time, scope and territory, that such restrictions are designed to eliminate competition which would be unfair to Xxxxxxxxx Xxxxx, that such restrictions are required to protect the legitimate interests of the Xxxxxxxxx Downs, and that such restrictions do not confer a benefit upon Xxxxxxxxx Xxxxx disproportionate to any detriment to Xxx. Xxx represents, stipulates and acknowledges that his experience and capabilities are such that the provisions of this Paragraph 6 will not prevent him from earning a livelihood.

PARAGRAPH 7. SEVERANCE FROM EMPLOYMENT.

Xxx acknowledges and agrees that his employment with Xxxxxxxxx Downs will be permanently, completely and unequivocally severed as of close of business on August 1, 2008. Xxx also acknowledges and agrees that neither Xxxxxxxxx Downs nor the Released Parties has any obligation, contractual or otherwise, to rehire, recall, reemploy, or consider Xxx for employment in the future subject to applicable law. Xxx agrees and acknowledges that execution of this Agreement shall constitute a legitimate, non-discriminatory reason for the refusal to hire him for employment in the future. The Parties acknowledge and agree that the Agreement and obligations of Xxx hereunder are expressly conditioned upon the complete and timely payment by Xxxxxxxxx Downs to Xxx of all amounts due as provided herein.

PARAGRAPH 8. EQUITABLE RELIEF.

Xxx and Xxxxxxxxx Xxxxx each acknowledges, stipulates and agrees that irreparable injury will result to the other in the event of a breach of any of the covenants or agreements contained in this Agreement by Xxx or Xxxxxxxxx Xxxxx. Therefore, Xxx and Xxxxxxxxx Xxxxx each agrees that in the event of any breach by the other of any of the covenants or agreements contained in this Agreement, the non-breaching party shall be entitled, in addition to any other remedies available to either party, to equitable relief in the form of an injunction or otherwise to restrain any such breach. Nothing contained in this Agreement shall in any way be construed as limiting the remedies of Xxx or Xxxxxxxxx Xxxxx in any way, but rather, the remedies of Xxx and Xxxxxxxxx Xxxxx, both in law and in equity, shall be cumulative.

PARAGRAPH 9. CHOICE OF LAW.

This Agreement will be interpreted and enforced in accordance with the laws of the State of Florida. Xxx agrees to waive any argument of lack of personal jurisdiction or forum non conveniens with respect to any claim or controversy arising out of

or relating to this Agreement, his employment, terms and conditions of employment, separation from employment with Xxxxxxxxx Xxxxx, and any other event, transaction, contact or communication involving Xxx and Xxxxxxxxx Xxxxx. Xxx consents to the exclusive jurisdiction of courts located in or for Dade County, Florida with respect to all matters relating to this Agreement. If any court holds any provision of this Agreement or the application of the provision to any person or circumstance invalid, the remaining provisions of this Agreement, and the application of the provision to persons or circumstances other than those to which it is held invalid, shall not be affected.

PARAGRAPH 10. NON-ADMISSION STATEMENT.

Xxx, Xxxxxxxxx Xxxxx and the Released Parties agree that this Agreement does not constitute an admission of any liability, violation of law or wrongdoing of any kind or nature whatsoever on the part of Xxxxxxxxx Downs or the Released Parties, but is simply a means of resolving uncertain disputes and claims between the parties.

PARAGRAPH 11. BINDING EFFECT.

The rights and obligations of Xxxxxxxxx Xxxxx under this Agreement shall inure to the benefit of Xxxxxxxxx Downs, and the successors and assigns of Xxxxxxxxx Xxxxx, and shall be binding upon the successors and assigns of Xxxxxxxxx Downs and Xxx. This Agreement, being personal to Xxx, cannot be assigned by Xxx, however, the obligations of Xxxxxxxxx Downs shall not terminate in the event of Ken's death.

PARAGRAPH 12. ENTIRE AGREEMENT.

This TRANSITION AND SEPARATION AGREEMENT sets forth the entire agreement between Xxx and Xxxxxxxxx Xxxxx and supersedes any and all prior and contemporaneous oral or written agreements or understandings between the Parties. No representation, promise, inducement or statement of intention has been made by any party or attorney that is not embodied in this Agreement. No party shall be bound by or liable for any alleged representation, promise, inducement, or statement of intention not contained in this Agreement. This Agreement cannot be amended, modified or supplemented in any respect except by a subsequent written agreement signed by all Parties.

PARAGRAPH 13. SECTION 409A.

It is intended that this Agreement shall comply with the provisions of section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and the Treasury Regulations relating thereto so as not to subject Xxx to the payment of additional taxes and interest under section 409A of the Code. In furtherance of this intent, this

Agreement shall be interpreted, operated, and administered in a manner consistent with these intentions, and to the extent that any regulations or other guidance issued under section 409A of the Code would result in Xxx being subject to payment of additional income taxes or interest under section 409A of the Code, Xxx and Xxxxxxxxx Xxxxx agree to amend this Agreement in order to avoid the application of such taxes or interest under section 409A of the Code. Notwithstanding anything herein to the contrary, unless termination of Xxx from his employment constitutes a "separation from service" under Section 409A of the Code any amounts payable hereunder that is subject to Section 409A of the Code may not be made earlier than the date which is 6 months after the date of separation from service (or, if earlier, Ken's date of death).

PARAGRAPH 14. KNOWING AND VOLUNTARY WAIVER OF RIGHTS.

Xxx acknowledges that he has read and fully understands all of the provisions of this Agreement, that he fully understands the terms, conditions and significance of this Agreement, that he has had ample time to consider this Agreement, that he has had a full opportunity to review this Agreement with an attorney, and that he has executed this Agreement, voluntarily, knowingly and with such advice from his attorney as he deemed appropriate.

DATE:	April 7, 0000


XXXXX XX XXXXXXX		)
		) SS:
COUNTY OF Miami Dade		)

Subscribed and sworn to before me by Xxx on April 7, 2008.

XXXXXXXXX XXXXX INCORPORATED

ATTACHMENT A

WAIVER AND GENERAL RELEASE

1. WAIVER AND RELEASE OF ALL CLAIMS. In consideration of the Completion Bonus and the Severance Amount made pursuant to Paragraphs 1 and 2 of the Transition and Separation Agreement (the "Agreement"), dated April __, 2008, by and between, C. Xxxxxxx Xxxx ("Xxx") and XXXXXXXXX XXXXX INCORPORATED (“Xxxxxxxxx Downs”), the sufficiency of which Xxx hereby acknowledges, Xxx agrees as follows:

a. Xxx agrees to, and does hereby, release Xxxxxxxxx Downs from any and all legal and equitable claims which he has, or may have, arising out of his employment, terms and conditions of employment, or separation from employment with Xxxxxxxxx Xxxxx, as of the date of the Agreement, excluding matters arising under the Agreement. Specifically, Xxx hereby forever releases, acquits, holds harmless, and discharges Xxxxxxxxx Xxxxx and any parent, subsidiaries, divisions and related corporations, partnerships, limited liability companies, insurers, successors and predecessor entities and each of their respective current or former directors, officers, shareholders, assigns, successors, attorneys, agents, representatives and employees, and former employees (collectively, with Xxxxxxxxx Downs, the “Released Parties”), from any and all claims, demands, actions and causes of action, obligations, damages, costs or expenses (including attorneys’ fees), known or unknown, contingent or otherwise, and whether specifically mentioned herein or not, that Xxx now has or has had or which may exist or which might be claimed to exist at or prior to the date of this Agreement, including, but not limited to, any and all claims or suits against the Released Parties, including claims arising out of Ken’s employment, terms and conditions of employment, or separation from employment with Xxxxxxxxx Downs (the "Release").

b. This Release includes, but is not limited to, the release of any and all claims or charges of discrimination, harassment, or retaliation filed, or which could have been filed against the Released Parties by Xxx with the federal courts, Kentucky state courts, other state courts, the Equal Employment Opportunity Commission, the United States Department of Labor, the Kentucky Labor Cabinet, the Kentucky Commission on Human Rights, or any other state or local civil rights agency; claims or suits under the following statutes, all as amended, the Fair Labor Standards Act of 1938; Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the Civil Rights Act of 1866; the National Labor Relations Act, as amended; the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended by the Older Workers Benefit Protection Act; the Americans with Disabilities Act; the Family and Medical Leave Act of 1993; the Employee

Retirement Income Security Act of 1974; the Federal Rehabilitation Act of 1973; the Whistleblower Protection Act; the Kentucky Equal Opportunities Act, the Kentucky Workers Compensation Act, the Kentucky Wages and Hours Act, Kentucky Labor and Human Rights Statute, KRS Chapter 336, the Florida Civil Rights Act of 1991, Section 760, Florida Statutes; Florida’s Whistleblower’s Act, Section 448, Florida Statutes, the Florida Worker’s Compensation Act, Section 440, Florida Statutes, any city, county or metro government civil rights ordinance; and any other claims or demands arising under either express or implied contract, breach of contract, tort, public policy, the common law, or any federal, state or local statute, ordinance, regulation or constitutional provision, or other liabilities, suits, debts, claims for back pay, front pay, severance pay, compensatory or punitive damages, costs, reinstatement, attorneys’ fees, commissions, bonuses, vacation pay, pension benefits or payment or reimbursement under any health insurance or other employee benefit plan (nothing contained herein is intended to constitute a waiver of Ken’s vested benefits under any retirement plan or his right to apply for unemployment benefits), or any other controversies of every kind and description, known or unknown, contingent or otherwise, and whether specifically mentioned herein or not, that Xxx now has or has had, or which may exist or might be claimed to exist at or prior to the date of this Release.

c. Xxx agrees, represents and warrants that he is not aware of any person other than Xxx who is authorized or entitled to assert any claim based on or arising out of any alleged discriminatory, unlawful, wrongful, tortious, or other conduct against Xxx by the Released Parties including, but not limited to, any and all claims for attorneys’ fees or damages resulting as a consequence thereof, based upon or seeking relief on account of actions or failures to act by the Released Parties which may have occurred or failed to occur prior to Ken’s execution of this Release. Xxx further represents and warrants that he has not assigned and shall never assign any such claim, and in the event any individual or agency of any kind shall make or file, on behalf of Xxx, any claim, charge, demand or suit against the Released Parties on account of, by reason of, or arising out of Ken’s employment, terms and conditions of employment, or separation from employment with Xxxxxxxxx Xxxxx, or any other event, contact, communication or transaction involving the Released Parties, Xxx hereby agrees to cooperate with the Released Parties and take all action necessary, appropriate or desirable, and execute any and all documents and papers necessary, appropriate or desirable, in the sole discretion of the Released Parties, in seeking the dismissal of any such claim, charge, demand or suit against the Released Parties.

2. WAIVER OF CLAIMS UNDER ADEA. Xxx understands that as part of this Release he is waiving his rights to pursue a claim against Xxxxxxxxx Downs for age discrimination under the ADEA and thus acknowledges and agrees that:

a. Xxx has been informed and understands and agrees that he has twenty-one (21) calendar days after receipt of this Release to consider whether to sign it;

b. Xxx has been informed and understands and agrees that he may change his mind and revoke this Release at any time during the seven (7) calendar days after this Release is signed, in which case none of the provisions of the Release or the Agreement will have any effect. Xxx acknowledges and agrees that if he wishes to revoke this Release, he must do so in writing, and that such revocation must be signed by Xxx and received by Xxxxxxx X. Xxxxxx, Vice President of Human Resources, Xxxxxxxxx Downs Incorporated no later than the seventh (7th) day after Xxx has signed the Release. Xxx acknowledges and agrees that, in the event Xxx revokes the Release, he shall have no right to receive the Completion Bonus and the benefits payable pursuant to Paragraph 2 of the Agreement provided therein.

c. Xxx agrees that prior to signing this Release, he read and understood each and every provision of this Release;

d. Xxx agrees that prior to signing this Release, he had the opportunity to consult with an attorney of his choosing regarding the effect of each and every provision of this Release.

e. Xxx acknowledges and agrees that he knowingly and voluntarily entered into this Release with complete understanding of all relevant facts, and that he was neither fraudulently induced nor coerced to enter into this Release.

f. Xxx understands that he is not waiving, releasing or otherwise discharging any claims under the ADEA that may arise after the date he signs this Release.

g. Xxx acknowledges and agrees that the Completion Bonus and the benefits payable pursuant to Paragraph 2 of the Agreement constitutes consideration beyond that which he is otherwise entitled to receive and is offered solely in exchange for his release and waiver of all claims as set forth herein.

3. ACKNOWLEDGMENT. Except for the benefits set forth in Paragraphs 1-3 of the Agreement, Xxx understands and agrees that he shall not be entitled to receive any other compensation or benefits of any sort from Xxxxxxxxx Downs or any of its officers, directors, employees, agents, insurance companies, subsidiaries, successors or assigns at any time.

The remainder of the page purposefully left blank. Please see signatures on next page.


	X. Xxxxxxx Xxxx


	Xxxx

XXXXX XX XXXXXXX	)
	)	SS:
COUNTY OF _______________	)

Subscribed and sworn to before me by Xxx on __________, 2008.


	Notary Public,


	My Commission Expires:


	XXXXXXXXX XXXXX INCORPORATED

	DATE:

	By:

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TRANSITION AND SEPARATION AGREEMENT

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