AGREEMENT AND RELEASE
Exhibit
99.1
Agreement
and Release (“Agreement”) executed this 29th day of
April, 2009, by and between Xxxxx X. Xxxxxx (“Employee”) who resides at X.X. Xxx
000, Xxxxxxxx Xxxx, Xxx Xxxx 00000 and Empire Resorts, Inc., a
Delaware Corporation, and its parents, subsidiaries and affiliates, with an
address at Xxxxxxxxxx, Xxx Xxxx 00000 (the “Company”).
1. Employee’s
employment shall be terminated effective April 30, 2009 (“Termination
Date”). As of the Termination Date, her current duties,
responsibilities, office and title shall cease.
2.
(a) Within ten
(10) days of the Release Effective Date, defined below, the Company shall pay to
Employee a lump sum payment of $45,000 and a lump sum payment of $25,000 for a
relocation allowance, less applicable withholdings and deductions.
(b) Health
insurance provided by the Company for senior officers will be provided through
December 31, 2009, the termination date of the Consulting Agreement of even date
herewith between the Employee and the Company. Thereafter, Employee
will be eligible for continuation of benefits pursuant to COBRA.
(c) All
options to purchase common stock of the Company held by Employee, as listed on
Exhibit A
attached hereto, shall continue to vest pursuant to their terms and remain
exercisable through the dates set forth on Exhibit
A.
(d) Provided
that prior to the Termination Date, Employee returns her Company owned laptop
and Blackberry to the Company temporarily for removal of Company information and
that Employee assumes responsibility for ongoing software license and usage
charges, the Company will permit Employee to keep the laptop and blackberry for
personal use, including original equipment software.
(e) Employee
agrees to make herself reasonably available to the Company for one year
following the Termination Date, up to and including April 30, 2010, to provide
consulting services to the Company, at a rate and at times to be agreed upon by
the parties.
3. Employee
agrees and acknowledges that the payments and benefits provided for in Paragraph
2 exceed any payments to which she would otherwise be entitled under any policy,
plan, and/or procedure of the Company absent her signing an Agreement and
Release. Employee acknowledges that she has been paid for work
performed up to and including the Termination Date and that there is nothing
owed for accrued but unused vacation, if any.
4. Employee
shall have up to twenty-one (21) days from the date of Employee’s receipt of
this Agreement, to consider the terms and conditions of the
Agreement. Employee may accept this Agreement at any time during the
twenty-one (21) day period by executing it before a notary and returning it to
Xxxxxx Xxxxxxxxx, Empire Resorts, Inc. 000 Xxxxx 00X Xxxxxxxxxx, Xxx Xxxx
00000, no later than 5:00 p.m. on the twenty-first (21st) day after Employee’s
receipt of this Agreement. Thereafter, Employee will have seven (7)
days to revoke this Agreement by stating her desire to do so in writing to
Xxxxxx Xxxxxxxxx, at the address listed above, no later than 5:00 p.m. on the
seventh (7th) day following the date Employee signs this
Agreement. The effective date of this Agreement shall be the eighth
(8th) day following Employee’s signing of this Agreement (the “Release Effective
Date”), provided the Employee does not revoke the Agreement during the
revocation period. In the event Employee does not accept this
Agreement as set forth above, or in the event Employee revokes this Agreement
during the revocation period, this Agreement, including but not limited to the
obligation of the Company and their subsidiaries and affiliates to provide the
payments and benefits referred to in Paragraph 2 above (unless otherwise
required by law), shall automatically be deemed null and void.
5.
(a) In
consideration of the payments and benefits referred to in this Agreement,
Employee for herself and for her heirs, executors, and assigns (hereinafter
collectively referred to as the “Releasors”), forever releases and discharges
the Company and any and all of their parent corporations, subsidiaries,
divisions, affiliated entities, predecessors, successors and assigns, and any
and all of their employee benefit and/or pension plans or funds, and any of
their past or present officers, directors, agents, trustees, administrators,
employees or assigns (whether acting as agents for such entities or in their
individual capacities), (hereinafter collectively referred to as the “Company
Releasees”), from any and all claims, demands, causes of action, fees and
liabilities of any kind whatsoever (based upon any legal or equitable theory,
whether contractual, common-law, statutory, decisional, federal, state, local or
otherwise), whether known or unknown, which Releasors ever had, now have or may
have against the Company Releasees by reason of any actual or alleged act,
omission, transaction, practice, conduct, occurrence, or other matter from the
beginning of the world up to and including the Release Effective Date, except
for the obligations of the Company under this Agreement.
(b) Without
limiting the generality of the foregoing Paragraph 5(a), this Agreement is
intended to and shall release the Company Releasees from any and all claims
arising out of Employee’s employment with Company Releasees and/or the
termination of Employee’s employment, including but not limited to any claim(s)
under or arising out of (i) Title VII of the Civil Rights Act of 1964, as
amended; (ii) the Americans with Disabilities Act, as amended; (iii) the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (excluding
claims for accrued, vested benefits under any employee benefit plan of the
Company in accordance with the terms of such plan and applicable law); (iv) the
Age Discrimination in Employment Act, as amended, or the Older Workers Benefit
Protection Act; (v) the WARN Act; (vi) the New York State and City Human Rights
Laws; (vii) the Delaware Fair Employment Practices Act; (viii) the Nevada Fair
Employment Practices Act; (ix) the Arizona Civil Rights Act; (x) Section 806 of
the Sarbanes Oxley Act of 2002; (xi) alleged discrimination or retaliation in
employment (whether based on federal, state or local law, statutory or
decisional); (xii) the terms and conditions of Employee’s employment with the
Company, the termination of such employment, and/or any of the events relating
directly or indirectly to or surrounding that termination; and (xiii) any law
(statutory or decisional) providing for attorneys’ fees, costs, disbursements
and/or the like. The releases set forth in this Agreement are not
intended to and do not release the Company from any of its obligations under
this Agreement.
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(c) Notwithstanding
the foregoing, nothing in this Agreement shall be construed to prevent Employee
from filing a charge with or participating in an investigation conducted by any
governmental agency, including, without limitation, the United States Equal
Employment Opportunity Commission (“EEOC”) or applicable state or city fair
employment practices agency, to the extent required or permitted by
law. Nevertheless, Employee understands and agrees that she is
waiving any relief available (including, for example, monetary damages or
reinstatement), under any of the claims and/or causes of action waived in
Paragraphs 5(a) and (b), including but not limited to financial benefit or
monetary recovery from any lawsuit filed or settlement reached by the EEOC or
anyone else with respect to any claims released and waived in this
Agreement.
6.
(a) Employee
agrees that she has not and will not publicly disparage (or induce or encourage
others to publicly disparage) the Company or the Company
Releasees. The Company agrees to cause its directors and officers not
to publicly disparage (or induce or encourage others to publicly disparage)
Employee.
(b) Employee
agrees to immediately return to the Company any and all originals and copies of
documents, materials, records, computers, blackberries and other electronic
devices or other items in her possession or control belonging to the Company or
containing proprietary information relating to the Company, except as provided
in section 2(e).
(c) (i) Employee
understands that during her employment, she may have had access to unpublished
and otherwise confidential information both of a technical and non-technical
nature, relating to the business of the Company and any of its parents,
subsidiaries, divisions, affiliates (collectively, “Affiliated Entities”), or
clients, including without limitation any of their actual or anticipated
business, research or development, any of their technology or the implementation
or exploitation thereof, including without limitation information Employee and
others have collected, obtained or created, information pertaining to clients,
accounts, vendors, prices, costs, materials, processes, codes, material results,
technology, system designs, system specifications, materials of construction,
trade secrets and equipment designs, including information disclosed to the
Company by others under agreements to hold such information confidential
(collectively, the “Confidential Information”). Employee agrees to
observe all Company policies and procedures concerning such Confidential
Information. Employee further agrees not to disclose or use, either
during her employment or at any time thereafter, any Confidential Information
for any purpose, including without limitation any competitive purpose, unless
authorized to do so by the Company in writing, except that she may disclose and
use such information when necessary in the performance of her duties for the
Company. Employee’s obligations under this Agreement will continue
with respect to Confidential Information until such information becomes
generally available from public sources through no fault of
Employee. Notwithstanding the foregoing, however, Employee shall be
permitted to disclose Confidential Information as may be required by a subpoena
or other governmental order, provided that she first notifies the Company of
such subpoena, order or other requirement and allows the Company the opportunity
to obtain a protective order or other appropriate remedy.
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(ii) Except
as expressly provided in subsection 2(d) of this Agreement, on or before the
Termination Date, Employee will promptly deliver to the Company all documents,
records, files, notebooks, manuals, letters, notes, reports, customer and
supplier lists, cost and profit data, e-mail, apparatus, computers, blackberries
or other PDAs, hardware, software, drawings, blueprints, and any other material
of the Company or any of its Affiliated Entities or clients, including all
materials pertaining to Confidential Information developed by Employee or
others, and all copies of such materials, whether of a technical, business or
fiscal nature, whether on the hard drive of a laptop or desktop computer, in
hard copy, disk or any other format, which are in her possession, custody or
control.
(d) (i) Employee
agrees that until twelve (12) months after the termination of her employment,
Employee will not, directly or indirectly, including on behalf of any person,
firm or other entity, employ or solicit for employment any employee of the
Company or any of its Affiliated Entities, or anyone who was an employee of the
Company or any of its Affiliated Entities within the six (6) months prior to the
termination of Employee’s employment, or induce any such employee to terminate
his or her employment with the Company or any of its Affiliated
Entities.
(ii) Employee
further agrees that until twelve (12) months after the termination of her
employment, Employee will not, directly or indirectly, including on behalf of
any person, firm or other entity, without the express written consent of an
authorized representative of the Company, (a) perform services (as defined
below) for any Competing Business (as defined below), whether as an employee,
consultant, agent, contractor or in any other capacity, (b) hold office as an
officer or director or like position in any Competing Business, (c) request any
present or future customers or suppliers of the Company or any of its Affiliated
Entities to curtail or cancel their business with the Company or any of its
Affiliated Entities, and (d) accept business from such customers or suppliers of
the Company or any of its Affiliated Entities directly or indirectly on behalf
of a Competing Business. These obligations will continue for the
specified period regardless of whether the termination of Employee’s employment
was voluntary or involuntary or with or without Cause.
(iii) “Competing
Business” means any entity or person (other than the Company) which is engaged
in the operation, development or planning of, or the preparation of applications
or obtaining of approvals for, gaming projects within the
Territory.
(iv) “Territory”
shall mean throughout the State of New York and in any area of any other state
within 120 miles of Monticello, New York.
(v) Employee
agrees that in the event a court determines the length of time or the geographic
area or activities prohibited under this Section 6 are too restrictive to be
enforceable, the court may reduce the scope of the restriction to the extent
necessary to make the restriction enforceable.
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7.
(a) Employee
will reasonably cooperate with the Company and/or its subsidiaries and
affiliates and their counsel in connection with any investigation,
administrative proceeding or litigation relating to any matter in which Employee
was involved or of which Employee has knowledge. Such cooperation
shall be scheduled at Employee’s convenience.
(b) Employee
agrees that, in the event she is subpoenaed by any person or entity (including,
but not limited to, any government agency) to give testimony (in a deposition,
court proceeding or otherwise) which in any way relates to Employee’s employment
with the Company, she will give prompt notice of such request to the Chief
Executive Officer, and will make no disclosure until the Company has had a
reasonable opportunity to contest the right of the requesting person or entity
to such disclosure, except as required by law.
8. Except
as required by law or legal process, the terms and conditions of this Agreement
are and shall be deemed to be confidential, and shall not be disclosed by
Employee to any person or entity without the prior written consent of the Chief
Executive Officer. Employee further represents that she has not
disclosed the terms and conditions of this Agreement to anyone other than her
attorneys, accountants and advisors.
9. The
making of this Agreement is not intended, and shall not be construed, as an
admission that Company Releasees have violated any federal, state or local law
(statutory or decisional), ordinance or regulation, breached any contract, or
committed any wrong whatsoever against Employee.
10. The
parties agree that this Agreement may not be used as evidence in a subsequent
proceeding except in a proceeding to enforce the terms of this
Agreement.
11. Employee
acknowledges that: (a) she has carefully read this Agreement in its entirety;
(b) she has had an opportunity to consider fully the terms of this Agreement;
(c) she has been advised by the Company in writing to consult with an
attorney of her choosing in connection with this Agreement, and she has done so
at her own expense; (d) she fully understands the significance of all of the
terms and conditions of this Agreement and she has discussed it with her
independent legal counsel, or has had a reasonable opportunity to do so; (e) she
has had answered to her satisfaction any questions she has asked with regard to
the meaning and significance of any of the provisions of this Agreement; and (f)
she is signing this Agreement voluntarily and of her own free will and assents
to all the terms and conditions contained herein.
12. This
Agreement is binding upon, and shall inure to the benefit of, the parties and
their respective heirs, executors, administrators, successors and
assigns.
13. If
any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, void, or unenforceable, such provision shall be of
no force and effect. However, the illegality or unenforceability of such
provision shall have no effect upon, and shall not impair the enforceability of,
any other provision of this Agreement; provided, however, that, upon any finding
by a court of competent jurisdiction that the release and covenants provided for
by Paragraph 5 of this Agreement is illegal, void, or unenforceable, Employee
agrees to execute a release, waiver and/or covenant that is legal and
enforceable. Finally, any breach by Employee of the terms of
Paragraphs 6, 7 and/or 8 shall constitute a material breach of this Agreement as
to which the Company may seek appropriate relief in a court of competent
jurisdiction.
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14. This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of New York, without regard to the conflict of laws
provisions thereof. Actions to enforce the terms of this Agreement,
or that relate to Employee’s employment with the Company shall be submitted to
the exclusive jurisdiction of any state or federal court sitting in the County
of New York, State of New York.
15. This
Agreement may be executed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument of this Agreement.
16. This
Agreement constitutes the complete understanding between the parties with
respect to the termination of the Employee’s employment at the Company and
supersedes any and all agreements, understandings, and discussions, whether
written or oral, between the parties. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing and signed
by each of the Parties.
[signature
page follows]
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[Signature
Page to Agreement and Release]
|
Dated:
|
04.30.09 | /s/ Xxxxx X. Xxxxxx | |
|
Xxxxx
X. Xxxxxx
|
|||
|
EMPIRE
RESORTS, INC.
|
||||
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxx | |||
|
Name:
|
Xxxxxxx Xxxxxxxxxx | |||
|
Title:
|
Sr. Vice President | |||
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Exhibit
A
Options
Outstanding
1. Options
to purchase 30,000 shares of common stock of Empire Resorts, Inc. at $8.26 per
share granted on March 18, 2005. These shall remain exercisable
through April 30, 2012.
2. Options
to purchase 8,500 shares of common stock of Empire Resorts, Inc. at $6.75 per
share granted on December 16, 2005. These shall remain exercisable
through April 30, 2012.
3. Options
to purchase 33,333 shares of common stock of Empire Resorts, Inc. at $5.53 per
share granted on August 10, 2006. These shall remain exercisable
through April 30, 2012.
4. Options
to purchase 10,000 shares of common stock of Empire Resorts, Inc. at $8.74 per
share granted on January 30, 2007. These shall remain exercisable
through April 30, 2012.
5. Options
to purchase 12,500 shares of common stock of Empire Resorts, Inc. at $2.98 per
share granted on July 21, 2008. These shall remain exercisable
through April 30, 2012.
To the
extent the Company (i) maintains a registration statement with respect to shares
of the Company or (ii) permits “net issuance”, broker assisted or other cashless
exercise with respect to options held by directors or officers of the Company,
Employee shall continue to be provided with those features with respect to the
foregoing options.
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