ISLE OF CAPRI CASINOS, INC. VOLUNTARY RESIGNATION AGREEMENT
EXHIBIT
99.1
ISLE
OF CAPRI CASINOS, INC.
THIS
VOLUNTARY RESIGNATION AGREEMENT (the
“Agreement”) is made as of the dates set forth below by and between Isle of
Capri Casinos, Inc., a corporation organized and existing under the laws of
the
State of Delaware (the “Company”), and Xxxxxxx X. Xxxxxxx, its Senior Vice
President, Chief Accounting Officer, Chief Financial Officer, and Assistant
Secretary (“Executive”).
1. Effective
Date.
This
Agreement shall be effective upon its execution by the parties hereto and its
approval and ratification by the Stock Option and Compensation Committee of
the
Board of Directors of the Company (the “Board”; the “Effective
Date”).
2. Voluntary
Resignation by Executive.
Effective as of November 1, 2005, Executive shall voluntarily resign his
position as Chief Financial Officer, Chief Accounting Officer, Treasurer and
Assistant Secretary of the Company and its subsidiaries. Executive shall
voluntarily resign as an officer and employee of the Company and its
subsidiaries as of December 31, 2005 (the period between the Effective Date
and
December 31, 2005, referred to herein as the “Transition Period”; December 31,
2005, referred to herein as Executive’s “Severance Date”).
3. Executive’s
Duties and Obligations. Notwithstanding
any provision of that certain Employment Agreement by and between Executive
and
the Company dated January 1, 2002 (the “Employment Agreement”) to the contrary,
during the Transition Period, Executive shall perform such duties as the
President of the Company shall reasonably request, which duties shall primarily
consist of matters related to the transition of his present duties,
responsibilities and obligations to one or more individuals designated by the
Board or the President. The parties hereto acknowledge that Executive shall
perform such duties on a substantially full time basis prior to November 1,
2005, and, thereafter, such duties shall be performed at such time or times
as
the President shall reasonably request.
4. Executive’s
Employment Agreement. Executive
acknowledges that as of the Effective Date and except as may be expressly
provided in Sections 5, 9, and 13 hereof, this Agreement shall supersede and
extinguish the rights and obligations of the parties set forth in the Employment
Agreement, including, but not limited to those rights and obligations concerning
termination set forth in paragraph 3 thereof.
5. Transition
Period Compensation and Benefits. During
the Transition Period, Executive shall be paid at the rate of his current base
compensation, $315,000 per annum, which amount shall be prorated and paid in
accordance with the Company’s standard payroll practices and policies, with the
exception that the Company shall pay the to Executive his final prorated
installment due hereunder no later than Dec. 30, 2005. During such period,
Executive shall further participate, pursuant to paragraph 2(d) of the
Employment Agreement, in the Company’s benefit plans, policies, programs and
arrangements in which he participates or is otherwise covered as of the
Effective Date in accordance with their terms.
Executive
acknowledges that he shall not be eligible to receive a cash or deferred payment
under any bonus plan or similar incentive arrangement with respect to the
Company’s fiscal year ended April 30, 2006.
6. Long-Term
Incentives. The
Company acknowledges that any outstanding options or other long-term incentives
granted or awarded to Executive under the terms of the Company’s 2000 Long-Term
Stock Incentive Plan, as amended and restated, shall continue to vest during
the
Transition Period and not thereafter. Any options that are vested as of the
Severance Date shall remain exercisable through December 31, 2006. Executive
further acknowledges that certain options granted to him under the Plan shall
be
forfeited.
7. Continuation
of Medical Benefits.
As of
the Severance Date, Executive may elect to continue coverage for himself and
his
dependents who are covered under the Company’s group medical plan in accordance
with Section 4980B of the Internal Revenue Code of 1986, as amended (the
“Code”). In the event of such election, the Company shall pay the cost of such
coverage election with respect to Executive and each such dependent for a
maximum period of 18-months or such shorter period as may be determined under
Code Section 4980B.
8. Other
Benefits. Notwithstanding
the foregoing and except as expressly provided herein, this Agreement does
not
affect or restrict in any manner Executive’s rights and benefits under the
employee benefit plans generally maintained by the Company and its affiliates
for the benefit of all of their employees or any plan, policy or arrangement
maintained by the Company and its affiliates for the benefit of their officers
and executives in which Executive was a participant or otherwise covered during
the term of his employment. Executive further acknowledges that certain amounts
accrued for his benefit under the Company’s Deferred Bonus Plan shall be
forfeited.
9. Confidentiality,
Nonsolicitation and Noncompetition. Executive
acknowledges and agrees that the provision concerning the protection of the
Company’s confidential information set forth in paragraph 5(b) of the Employment
Agreement and the proscription concerning nonsolicitation set forth in paragraph
5(d) of the Employment Agreement shall each survive the cancellation and
extinguishment of such agreement as provided in Section 4 hereof and shall
be
and remain enforceable in accordance with their terms.
The
parties hereto further agree that the proscription set forth in paragraph 5(c)
of the Employment Agreement concerning noncompetition shall also survive the
cancellation and extinguishment of such agreement as provided in Section 4
hereof and such that proscription shall be and remain enforceable in accordance
with its terms; provided, however, that such proscription shall not prevent
Executive from serving as a member of the board of directors of any corporation,
the equity securities of which are registered under Section 12 of the Securities
Exchange Act of 1934, as amended, which is engaged in the ownership, development
or management of a gaming operation or facility during the restriction period,
provided
that
Executive shall not participate in any decision or consideration precedent
thereto that directly affects the Company, including the business and affairs
of
its affiliates.
10. Nondisparagement.
Executive agrees that he will not:
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a.
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Publicly
or privately criticize or disparage the Company or its affiliates
in a
manner intended or reasonably calculated to result in public embarrassment
to, or injury to the reputation of, the Company or its affiliates
in any
community in which they are engaged in business;
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b.
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Directly
or indirectly, acting alone or acting in concert with others, institute
or
prosecute, or assist any person in any manner in instituting or
prosecuting, any legal proceedings of any nature against the Company,
except where such participation or reporting is required by law,
and
subject, however, with respect to any legal action relating to Executive’s
employment, to the provisions of Section 12
hereof;
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c.
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Damage
the property of the Company or otherwise engage in any misconduct
which is
injurious to the business or reputation of the Company; or
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d.
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Take
any other action, or assist any person in taking any other action,
that is
adverse to the interests of the Company and its affiliates or inconsistent
with fostering the goodwill of the Company and its
affiliates
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Executive
will not be in breach of the foregoing covenants solely by reason of his
testimony which is compelled by process of law.
The
Company agrees that it will not publicly or privately criticize or disparage
Executive in a manner intended or reasonably calculated to result in
embarrassment to, or injury to the reputation of, Executive in the community,
or
to result in a detrimental impact on Executive.
11. Consulting
Services.
During
the 6-month period commencing as of the first business day following his
Severance Date, Executive shall serve as a consultant to the Company. During
such period, Executive shall be reasonably available to perform such duties
as
may be requested by the President or other appropriate officers of the Company.
In
consideration of the performance of the foregoing services and subject to the
provisions of Section 12 hereof, the Company shall pay to Executive the sum
of
$60,000, which amount shall be paid in the form of a single sum payment not
later than December 30, 2005. Executive agrees that he shall be an independent
contractor as to the Company with respect to the services performed hereunder
and that he shall not participate in any plan, policy or program maintained
by
the Company or its affiliates for the benefit of their employees, officers
or
executives, except as provided under Section 7 or 8 hereof.
12. Waiver
and Release.
In
consideration of the arrangement to provide consulting services set forth in
Section 11 hereof, the adequacy of which is hereby acknowledged, Executive
agrees to execute the waiver and release attached hereto as Attachment A on
or
before December 30, 2005.
13. Assistance
and Cooperation.
Executive agrees he will furnish such information and proper assistance as
may
be reasonably necessary in connection with any administrative agency claim,
charge or complaint and/or any litigation in which the Company is or may become
involved. The Company shall pay Executive’s direct expenses incurred hereunder.
If Executive’s assistance requires substantial time or is likely to result in
Executive’s material loss of income, Company agrees to compensate Executive for
time expended hereunder, at a rate of $1312.50 per day.
14. Nonassignability.
Neither
this Agreement nor any right or interest hereunder shall be subject, in any
manner, to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge, whether voluntary or involuntary, by operation of law
or
otherwise. The parties hereto agree that any attempt at such shall be void.
The
parties hereto further agree that any such right or interest shall not in any
way be subject to the debts, contract, liabilities, engagements or torts of
Executive, nor shall it be subject to attachment or legal process for or against
Executive.
15. Amendment
to Agreement.
This
Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto.
16. Waiver.
No term
or condition of this Agreement shall be deemed to have been waived, nor shall
there be an estoppel against the enforcement of any provision of this Agreement,
except by written instrument of the party charged with such waiver or
estoppel.
17. Notices.
All
notices or communications hereunder shall be in writing, addressed as
follows:
To
the
Company:
To
the Executive:
Isle of Capri Casinos,
Inc.
Xxxxxxx
X. Xxxxxxx
0000
Xxxxx Xxxxx Xxxx, Xxxxx X-0
Xxxxxx,
XX 00000
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Attn: Xxxxxxx X. Xxxxxxx
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All
such
notices shall be conclusively deemed to be received and shall be effective,
(a)
if sent by hand delivery, upon receipt, (b) if sent by telecopy or facsimile
transmission, upon confirmation of receipt by the sender of such transmission
or
(c) if sent by registered or certified mail, on the fifth day on which such
notice is mailed.
18. Source
of Payments.
All
cash payments provided in this Agreement will be paid from the general funds
of
the Company. Executive’s status with respect to amounts owed under this
Agreement will be that of a general unsecured creditor of the Company, and
Executive will have no right, title, or interest whatsoever in or to any
investments which the Company may make to aid the Company in meeting its
obligations hereunder.
19. Tax
Withholding.
The
Company may withhold from any benefit or amount payable under this Agreement
all
federal, state, city or other income or employment taxes that it reasonably
determines are required to be withheld pursuant to any law or governmental
regulation or ruling.
20. Severability.
If any
provision of this Agreement is held to be invalid, illegal, or unenforceable,
in
whole or in part, such invalidity will not affect any otherwise valid provision,
and all other valid provisions will remain in full force and
effect.
21. Titles.
The
titles and headings preceding the text of the paragraphs and subparagraphs
of
this Agreement have been inserted solely for convenience of reference and do
not
constitute a part of this Agreement or affect its meaning, interpretation or
effect.
22. Governing
Law.
This
Agreement will be construed and enforced in accordance with the internal laws
of
the State of Delaware.
23. Entire
Agreement.
Subject
to the provisions of Sections 4, 5, 9 and 13 hereof, this Agreement sets forth
the entire agreement between the parties hereto and, except as expressly set
forth herein, fully supersedes any prior agreements or understandings between
the parties, whether orally or in writing. Executive acknowledges that he has
not relied upon any representations, promises or agreements of any kind made
to
him in connection with the execution of this Agreement, except as set forth
herein.
24. Arbitration. Any
dispute, controversy or claim arising out of or relating to this Agreement
shall
be determined under the rules of the American Arbitration Association as then
in
effect, by an arbitrator mutually acceptable to the Company and the Executive.
The arbitration shall take place in Wilmington, Delaware, at such place or
places, as the arbitrator shall designate. The arbitrator shall base his
decision only upon evidence that is admissible under the Federal Rules of Civil
Procedure. In rendering his decision, the arbitrator shall make specific written
findings of fact, taking into account applicable judicial precedents and
industry practice. Any award or determination by the arbitrator shall be final
and conclusive upon the parties, for which any court of a competent jurisdiction
may enter judgment. The arbitration shall be governed by the Federal Arbitration
Act, 9 U.S.C. Sections 1 through 16, to the exclusion of state laws inconsistent
therewith.
The
parties agree that if either party incurs legal fees or other expenses in
connection with the enforcement of this Agreement, the arbitrator shall
determine which party shall bear such fees and expenses and in what
amounts.
25. Expenses.
At
all
times during the Transition Period and during the consulting period described
in
Section 11 hereof, the Company shall pay or reimburse Executive for all
reasonable and necessary out-of-pocket expense incurred by him in the
performance of his duties under this Agreement, subject to the presentment
of
appropriate vouchers in accordance with the Company's policies for expense
verification.
THIS
AGREEMENT is
executed in multiple counterparts as of the dates set forth below, each of
which
shall be deemed an original, to be effective as of the date or dates described
above.
ISLE
OF CAPRI CASINOS, INC.
EXECUTIVE
By:_/s/
XXXXXXX X. XXXXXXX ____
By:
_ /s/ XXXXXXX X. YEISLEY_________
Xxxxxxx
X. Xxxxxxx
Its:_President
___________________
Date:
_November 14, 2005______________
Date:_November
14, 2005__ ____
Attachment
"A" to Voluntary Resignation Agreement
Waiver
and Release Agreement
THIS
WAIVER AND RELEASE AGREEMENT
(“Release” or “Agreement”) is made and entered into by and between the Isle of
Capri Casinos, Inc. (the “Company”), and Xxxxxxx X. Xxxxxxx (“Executive”) on
this the 14 day of November
2005.
WHEREAS,
Executive and the Company entered into a Voluntary Resignation Agreement
(“Resignation Agreement”) to which this Agreement is attached as Attachment “A”.
WHEREAS,
in
exchange for the consideration set forth in the Resignation Agreement, Executive
has agreed to waive and release all claims against the Company, as more
specifically set forth below.
NOW,
THEREFORE,
in
consideration of the mutual covenants contained herein and as set forth in
the
Resignation Agreement, the Company and Executive agree as follows:
FIRST: In
consideration of the amounts and benefits payable to Executive in accordance
with the terms of the Resignation Agreement, including but not limited to
the
consideration specified in Section 11 thereof, Executive, on behalf of himself,
his heirs, administrators, representatives, executors, assigns and attorneys,
agrees that he hereby fully releases and discharges the Company, and each
of its
stockholders, agents, representatives, insurers, directors, officers, employees,
and each of its subsidiaries and related business entities, from any and
all
claims, demands, actions, liabilities, suits, debts, fees (including attorney’s
fees), penalties and complaints of any nature which he may have or bring
against
the Company, and the above-listed entities or individuals, for any reason
regarding any matter, cause or thing whatsoever, including, without limitation,
any matter pertaining to his employment and/or the termination thereof,
occurring on or before the date upon which Executive executes this Release.
Without limiting the foregoing Release, and by way of example only, Executive
warrants that he has not initiated or filed any claim and agrees not to initiate
or file any claim against the Company, or the above-listed entities or
individuals, for:
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a.
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Any
alleged violations of the Age Discrimination in Employment Act
of 1967, as
amended, 29 U.S.C. 621 et seq.,
or the Older Workers’ Benefit Protection Act, or any similar state or
local laws;
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b.
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Any
alleged violations of Title VII of the Civil Rights Act of 1964,
as
amended, 42 U.S.C. 2002 et seq.,
or of federal Executive Order 11246 or any similar state or local
laws;
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c,
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Any
alleged violations of the Employee Retirement Income Security Act
of 1974,
as amended, 29 U.S.C. 1000 et seq.;
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d.
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Any
alleged violations of the Americans with Disabilities Act of 1990,
as
amended, 42 U.S.C. 12101, et seq.,
or any similar state or local laws;
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e.
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Any
conduct on the part of the Company which Executive may allege to
have
constituted defamation, interference with contractual rights, abuse
of
rights, breach of good faith or an invasion of privacy;
and
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f.
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Under
any other basis, regarding any claims for compensation, wages,
benefits,
severance pay, vacation pay, pension benefits, termination pay
benefits,
damages, and fees under any state, federal, or local laws, statutes,
ordinances, decisions, constitutional provisions, executive orders
or
regulations.
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SECOND: Executive
acknowledges:
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a.
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That
he has been given a period of no less than twenty-one (21) days
during
which to consider this Release; that if this Release is signed
before the
expiration of the period, the remainder of the period will be deemed
waived and that if this Release is modified, the initial period
will not
be extended;
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b.
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That
he has been advised to meet with and consult with his family and
attorney
and any other advisors of his choice regarding the terms of this
Release;
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c.
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That
he is voluntarily entering into this Release with the full understanding
of the terms and conditions contained
herein;
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d.
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That
the consideration described in paragraph FIRST hereof is in addition
to
that to which he is otherwise
entitled;
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e.
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That
this Release may be revoked within seven (7) days after its execution,
and
this Release will not become effective or enforceable until the
revocation
period has expired;
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f.
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That
if Executive elects to revoke this Release as provided in subsection
(e)
above, Company will be released of its obligations as set forth
in Section
11 of the Resignation Agreement.
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THIRD: Executive
further acknowledges that any amounts or benefits payable to him hereunder
shall
be subject to withholding for all income and employment taxes required by
law to
be withheld.
FOURTH: This
Release will become effective SEVEN (7) DAYS from its execution, unless
the
Company receives written notice from Executive of his desire to revoke
his
acceptance of the Release. Such notice to be provided to:
Isle
of Capri Casinos,
Inc.
0000
Xxxxx Xxxxx Xxxx, Xxxxx X-0
Xxxxxx
XX
00000
Attention:
Xxxxxx Xxxxx, Vice President, Human Resources
and
must be received within SEVEN (7) DAYS from the
date of execution.
THUS
DONE AND SIGNED
by
Executive on this 14 day of
November, 2005.
Witnesses: Executive:
/s/ XXXX X.
XXXX
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
/s/ XXXXX X.
XXXX
Acknowledged
and Agreed to by
Isle
of Capri Casinos, Inc.:
By:
/s/
XXXXXXX X.
XXXXXXX
Date:
November 14,
2005
