EXHIBIT 10.18
SEPARATION AGREEMENT
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This Separation Agreement is made and entered into this fourth day of
January, 2001 (the "Agreement"), by and between Harveys Casino Resorts, a Nevada
corporation ("Employer"), and Xxxxxxx X. Xxxxxxx ("Employee").
W I T N E S S E T H:
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WHEREAS, Employee is currently employed by Employer as its President and
Chief Executive Officer and serves as a member of the Board of Directors of
Employer (the "Board"), in each case, pursuant to an Amended and Restated
Employment Agreement, dated as of April 28, 2000 (the "Employment Agreement");
WHEREAS, in connection with Employee's employment with Employer, Employee
and Employer have entered into a Stock Option and Restricted Stock Agreement,
dated as of February 2, 1999 (the "1999 Award Agreement"), a Restricted Stock
Agreement, dated as of May 26, 2000 (the "2000 Award Agreement"), a Deferred
Compensation Agreement, dated as of February 2, 1999 (the "Deferred Compensation
Agreement"), a Memorandum of Understanding, dated as February 2, 1999 (the
"MOU"), and a Stockholders Agreement, dated as of February 2, 1999 (the
"Stockholders Agreement" and, together with the Employment Agreement, the 1999
Award Agreement, the 2000 Award Agreement, the Deferred Compensation Agreement
and the MOU, the "Management Agreements");
WHEREAS, Employer and Employee have determined that it is in their
respective best interests for Employee's employment with Employer to terminate
and for Employee to resign from membership on the Board, in each case, effective
as of the Termination Date (as defined below); and
WHEREAS, Employer and Employee desire to agree upon the consequences of
Employee's termination of employment and Board membership and to set forth such
agreement herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, together with other good and valuable consideration
the receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, all
capitalized terms used herein without definition shall have the respective
meanings assigned to such terms in the Employment Agreement unless provided
otherwise.
2. TERMINATION OF EMPLOYMENT; BOARD MEMBERSHIP. Effective as of the
earlier of (i) January 31, 2001 and (ii) any date after the date hereof
specified by Employer upon five days' prior written notice to Employee (such
earlier date, the "Termination Date"), Employee hereby resigns from his
positions as President and Chief Executive Officer of Employer, as a member of
the Board and from all other offices, positions and board of directors
memberships with Employer or any of its subsidiaries or affiliates currently
held by Employee. In furtherance of the foregoing, Employee agrees to promptly
deliver such letters of resignation as Employer may reasonably request from time
to time.
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3. BENEFITS IN CONNECTION WITH TERMINATION. Employee shall be
entitled to the following payments and benefits in connection with the
termination of his employment and Board memberships, subject to Employee's prior
execution of a general release of claims substantially in the form attached
hereto as Exhibit A and provided Employee does not revoke such release during
the Revocation Period as permitted under the terms of such release. For purposes
of this Agreement, the term "Revocation Period" means the period commencing on
the Termination Date and ending on the seventh day immediately following the
Termination Date (the "Revocation Period").
(a) SEVERANCE COMPENSATION. No later than 5 business days following
the expiration of the Revocation Period (such date of payment being
referred to herein as the "Payment Date"), Employee shall be entitled to
receive a lump sum cash payment equal to $1,938,000, which amount
represents the cash severance payment described in Section 4.02(a) and
4.04(a) of the Employment Agreement equal to the product of (x) 2.0 and (y)
the sum of the Employee's Base Salary ($570,000) and Annual Target Bonus
($399,000).
(b) SPECIAL RETENTION BONUS. On the Payment Date, Employee shall be
entitled to receive a lump sum cash payment equal to $500,000, which amount
represents the retention bonus described in Section 7.04 of the Employment
Agreement.
(c) CONTINUED BENEFIT COVERAGE. Employee shall be entitled to
continuation of his Benefits for the 24 month period immediately following
the Termination Date; provided, that in the event that, during such period,
pursuant to applicable law or the terms of the applicable plan, any
Benefits may not be provided pursuant to the terms of the specific plan
referenced in the Employment Agreement, Employer shall provide
substantially equivalent benefits alternate means.
(d) AWARDS UNDER THE 1999 AWARD AGREEMENT. As of the Termination Date
(x) 80% of all then outstanding Stock Awards and Stock Options granted to
Employee pursuant to the 1999 Award Agreement shall be cancelled (such
cancelled awards, the "Exchanged 1999 Stock Awards" and such cancelled
options, the "Exchanged 1999 Options") in exchange for an aggregate payment
(the "1999 Award Payment") equal to the sum of the amounts set forth in
subparagraphs (i) and (ii) below, to be paid as set forth below, and (y)
the remaining 20% of all Stock Awards and Stock Options granted to Employee
pursuant to the 1999 Award Agreement shall terminate and be cancelled
without any payment or other consideration to Employee.
(i) The portion of the 1999 Award Payment in respect of each
Exchanged 1999 Stock Award shall equal the product of (A)
$43.42 (the "Deemed Share Price") multiplied by (B) the
number of shares of Class A Common Stock and Class B Common
Stock subject to each such Exchanged 1999 Stock Award.
(ii) The portion of the 1999 Award Payment in respect of each
Exchanged 1999 Option shall equal the product of (A)(I) the
excess of the Deemed Share Price over (II) the exercise
price per share of Common Stock applicable under each such
Exchanged 1999 Option multiplied by (B) the
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number of shares of Common Stock subject to each such
Exchanged 1999 Option immediately prior to the cancellation
thereof.
Subject to Section 7(g), the 1999 Award Payment, together with any
amounts that become payable to Employee pursuant to Section 3(e) hereof in
respect of the 2000 Award (an such amounts collectively the "2000 Award
Payment"), shall be made to Employee in cash in installments of $1 million
each, with the first such installment payable on the first anniversary of the
Payment Date and each subsequent installment payable on each successive
anniversary of the Payment Date thereafter until Employee has received
payment of the full amount of the 1999 Award Payment and the 2000 Award
Payment; provided that the last installment payable pursuant to this
paragraph (d) shall equal the excess of (i) the sum of the full amount of the
1999 Award Payment and the full amount of the 2000 Award Payment over (ii)
the sum of all installments of the 1999 Award Payment and the 2000 Award
Payment paid to Employee prior to the payment date for the last such
installment payment. Employee shall be entitled to interest, at an annual
rate of 12%, on all installments of the 1999 Award Payment and the 2000 Award
Payment, such interest to accrue (i) in respect of installments of the 1999
Award Payment for the period beginning on the Payment Date and ending on the
date prior to the payment date for the applicable installment and (ii) in
respect of installments of the 2000 Award Payment for the period beginning on
the date the corresponding Incentive Stock Grant Shares become Vested
Incentive Stock Grant Shares and ending on the date prior to the payment date
for the applicable installment.
(e) AWARDS UNDER THE 2000 AWARD AGREEMENT. Each share of restricted
stock awarded to Employee pursuant to the 2000 Award Agreement (such
shares, collectively, the "Incentive Stock Grant Shares") shall be
cancelled as of the Termination Date. Notwithstanding the cancellation of
the Incentive Stock Grant Shares, Employee shall be entitled to receive a
payment in respect of the portion, if any, of the Incentive Stock Grant
Shares that become Vested Incentive Stock Grant Shares in accordance with
the following provisions of this Section 3(e), such payment (i) to equal
the product of (x) the number of Incentive Stock Grant Shares that become
Vested Incentive Stock Grant Shares multiplied by (y) the Deemed Share
Price and (ii) to be payable in accordance with the last paragraph of
Section 3(d) above.
All or a portion, as applicable, of the Incentive Stock Grant Shares
shall become Vested Incentive Stock Grant Shares if and to the extent that
the conditions set forth in subparagraphs (i) and (ii) of this Section 3(e)
are satisfied.
(i) Subject to satisfaction of the condition set forth in clause (ii)
below, 20% of the Incentive Stock Grant Shares shall become
Vested Incentive Stock Grant Shares as of the date of the
Referendum Approval (as defined below) and the remaining 60% of
the Incentive Stock Grant Shares shall become Vested Incentive
Stock Grant Shares in three equal increments on the later of (x)
December 1, 2000, December 1, 2001 and December 1, 2002,
respectively, and (y) the date of the Referendum Approval, in
each case, if, and only if, the performance criteria described in
clause (A), (B)
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and (C) below, respectively, are satisfied, determined after
giving effect to the adjustment and catch-up provisions of
clauses (D) and (E) below:
(A) For the Company's fiscal year ended November 30, 2000,
subject to satisfaction of the condition set forth in clause
(ii) below, 1/3rd of the remaining 60% of the Incentive
Stock Grant Shares shall become Vested Incentive Stock Grant
Shares (i.e., 20% of the total Incentive Stock Grant Shares)
if the Company's Bluffs Run Casino ("Bluffs Run") generates
at least $34,000,000 EBITDA in such fiscal year (the "2000
Target").
(B) For the Company's fiscal year ended November 30, 2001,
subject to satisfaction of the condition set forth in clause
(ii) below, 1/3rd of the remaining 60% of the Incentive
Stock Grant Shares shall become Vested Incentive Stock Grant
Shares (i.e., 20% of the total Incentive Stock Grant Shares)
if Bluffs Run generates at least $35,000,000 of EBITDA in
such fiscal year (the "2001 Target").
(C) For the Company's fiscal year ended November 30, 2002,
subject to satisfaction of the condition set for in clause
(ii) below, 1/3rd of the remaining 60% of the Incentive
Stock Grant Shares shall become Vested Incentive Stock Grant
Shares (20% of the total Incentive Stock Grant Shares) if
Bluffs Run generates at least $36,000,000 of EBITDA in such
fiscal year (the "2002 Target" and, together with the 2000
Target and the 2001 Target, each a "Performance Target").
(D) The 2001 Target and the 2002 Target shall be subject to
equitable adjustment for any annual increase in state gaming
taxes in such fiscal year and for revenue enhancing capital
expenditures made during the preceding fiscal year.
(E) In the event that Bluffs Run fails to meet a Performance
Target in a fiscal year (a "Shortfall Year"), no portion of
the Incentive Stock Grant Shares shall become Vested
Incentive Stock Grant Shares for such Shortfall Year;
provided, however, that if the Performance Target for the
year immediately following a Shortfall Year is exceeded by
at least the amount of the shortfall in the Shortfall Year
(the difference between the Shortfall Year's Performance
Target and the EBITDA actually generated by Bluffs Run in
such Shortfall Year), then the number of Incentive Stock
Grant Shares that would have become Vested Incentive Stock
Grant Shares for the Shortfall Year if the Performance
Target had been satisfied, shall, subject to satisfaction of
the condition set forth in clause (ii) below, become Vested
Incentive Stock Grant Shares as if the Performance Target in
the Shortfall Year had been satisfied.
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(ii) No Incentive Stock Grant Shares shall become Vested Incentive
Stock Grant Shares prior to Referendum Approval (as such term is
defined in Section 2.2.1 of that certain Purchase and Sale
Agreement and Joint Escrow Instructions dated August 31, 1999, by
and between HBR Realty Company, Inc. and Iowa West Racing
Association) and, in the event that Referendum Approval does not
occur, no Incentive Stock Grant Shares shall ever become Vested
Incentive Stock Grant Shares and, accordingly, no amount shall be
payable to Employee in respect of the Incentive Stock Grant
Shares pursuant to this Agreement, the 2000 Award Agreement or
otherwise.
No amount shall be payable to Employee in respect of 20% of the
Incentive Stock Grant Shares under any circumstances and, with respect to
the remaining 80% of the Incentive Stock Grant Shares, to the extent that
the conditions set forth in subparagraphs (i) and/or (ii) of this Section
3(e) are not satisfied, no amount shall be payable to Employee in respect
of the applicable portion of such remaining Incentive Stock Grant Shares
hereunder, pursuant to the 2000 Award Agreement or otherwise.
(f) DEEMED SERP SHARES. On the Payment Date, subject to Section 7(g),
Employee shall be entitled to receive a lump sum cash payment equal to the
product of the number of Deemed SERP Shares (within the meaning of the
Deferred Compensation Agreement) multiplied by the Deemed Share Price.
(g) ACCRUED SALARY AND BENEFITS. Employee shall be entitled to prompt
payment of all accrued but unpaid Base Salary as of the Termination Date.
In addition, Employee shall be entitled to all benefits accrued as of the
Termination Date under the employee benefit plans of Employer in which
Employee was a participant, including, without limitation, any payments
determined by the Compensation Committee of the Board to have been earned
under the 2000 Management Incentive Plan, such benefits to be paid or
provided in accordance with the terms of such plans as in effect from time
to time.
4. ALTERNATIVE PROVISIONS; CONSUMMATION OF PINNACLE TRANSACTION.
Notwithstanding and in lieu of the provisions of Section 3 of this Agreement,
if the Pinnacle Transaction (as defined below) is consummated on or prior to
March 15, 2001 in accordance with the terms of the Acquisition Agreement (as
defined below), Employee shall be entitled to all of the payments and benefits
provided under Section 4.04 of the Employment Agreement as though the
termination of Employee's employment with Employer had been a Post-Acquisition
Special Termination except that any payments and benefits therefore paid or
provided to Employee pursuant to Section 3 of this Agreement shall reduce, on a
dollar for dollar or benefit by benefit basis, as the case may be, any and all
payments and benefits described in Section 4.04 of the Employment Agreement
that become payable to Employee pursuant to this Section 4.
The term (i) "Acquisition Agreement" means the Agreement and Plan of
Merger, dated as of April 17, 2000, among Pinnacle Entertainment, Inc.
("Target"), PH Casino Resorts, Inc., a wholly owned subsidiary of Employer, and
Pinnacle Acquisition Corporation ("Acquisition"), as the same may be amended,
supplemented, or superceded and (ii) "Pinnacle Transaction" means the merger of
Acquisition with and into Target or any similar transaction as
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a result of which Target, or an entity that has acquired substantially all of
the assets and business of Target, controls, is controlled by or is under
common control with Employer, but not including any transaction as a result
of which Target and Employer are under common control solely be reason of
having as their respective ultimate common parent a pooled investment entity
sponsored by Colony Capital, Inc.
5. CERTAIN RESTRICTIVE COVENANTS. Employee acknowledges that
during the course of his employment with Employer, its subsidiaries and
affiliates, he has been exposed to documents and other information regarding
the confidential affairs of Employer, its subsidiaries and affiliates,
including, without limitation, Colony Capital, Inc., its employees, owners
and affiliates, including without limitation such information about their
past, present and future financial condition, the markets for their products,
key personnel, past, present or future actual or threatened litigation, trade
secrets, current and prospective customer lists, operational methods,
acquisition plans (including without limitation potential acquisition
targets), financing sources, prospectus, plans for future development and
other business affairs and information about Employer and it subsidiaries and
affiliates, including, without limitation, Colony Capital, Inc., its
employees, owners and affiliates, all of which is not readily available to
the public (the "Confidential Information"). Employee further acknowledges
that the services performed by him pursuant to the Employment Agreement are
of a special, unique, unusual, extraordinary and intellectual character. In
recognition of the foregoing, Employee covenants and agrees as follows:
(a) PROTECTION OF CONFIDENTIAL INFORMATION. At no time shall
Employee ever divulge, disclose, or otherwise use any Confidential
Information, unless and until such information is readily available in the
public domain by reason other than Employee's unauthorized disclosure or
use thereof, unless such disclosure or use is expressly authorized by the
Board in writing in advance of such disclosure or use.
(b) RETURN OF PROPERTY. In connection with the termination of
Employee's employment, Employee shall promptly deliver to Employer's
offices in Stateline, Nevada all of the property and equipment of Employer
and its subsidiaries and affiliates (including any automobiles, cell
phones, pagers, credit cards, personal computers, etc.) and any and all
documents, records, and files, including any notes, memoranda, customer
lists, reports or any and all other documents, including any copies
thereof, whether in hard copy form or on a computer disk or hard drive,
which related to Employer, its subsidiaries, affiliates, successors or
assigns, and/or their respective past or present officers, directors,
employees or consultants (collectively, the "Employer Property, Records and
Files"); it being expressly understood that, upon termination of Employee's
employment, Employee shall not be authorized to retain any of the Employer
Property, Records and Files, except to the extent expressly so authorized
in writing by the Board.
(c) NONCOMPETITION. For the one year period immediately following
the Termination Date, Employee shall not at any time in the Lake Tahoe
or Iowa geographic area or for or in respect of any entity which,
directly or indirectly, including through affiliates, has operations in
the Lake Tahoe or Iowa geographic area, directly or indirectly, (i) for
Employee's own account, engage in any business that is competitive with
the Business (as defined below); (ii) enter the employ of, or render any
consulting
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services to, any entity that competes with Employer or its subsidiaries,
affiliates, successors, or assigns, in the Business; or (iii) become
interested in any such entity in any capacity, including without
limitation, as an individual, partner, shareholder, officer, director,
principal, agent, trustee or consultant; provided that (x) Employee may
(A) own, directly or indirectly, solely as a passive investment,
securities of any entity traded on any national securities exchange or
market if Employee is not a controlling person of, or a member of a group
which controls, such entity and does not, directly or indirectly, own 5%
or more of any class of securities of such entity and (B) make passive
investments in hospitality enterprises not materially competitive with
gaming and/or enterprises which are principally bar/restaurant
enterprises containing no more than 50 gaming positions.
For purposes hereof, the term "Business" means the owning,
operating, managing and/or developing of land-based or riverboat casinos
or hotels associated or materially competitive with casinos, or any other
business engaged in from time to time by Employer or its subsidiaries,
affiliates, successors or assigns in which Employee had significant
authority and responsibility in connection with his employment with
Employer.
(d) NON-SOLICITATION OF EMPLOYEES. For the two year period
immediately following the Termination Date, Employee shall not at any
time, directly or indirectly, solicit or induce any officer, director,
employee, agent or consultant of Employer or any of its successors,
assigns, subsidiaries or, to the best of Employee's knowledge,
affiliates, to terminate his, her or its employment or other
relationship with Employer or its successors, assigns, subsidiaries or,
to the best of Employee's knowledge, affiliates, for the purpose of
associating with any competitor of Employer or its successors, assigns,
subsidiaries or, to the best of Employee's knowledge, affiliates, or
otherwise encourage any such person or entity to leave or sever his, her
or its employment or other relationship with Employer or its successors,
assigns, subsidiaries or, to the best of Employee's knowledge,
affiliates, for any other reason.
(e) NON-SOLICITATION OF SUPPLIERS, CLIENTS, ETC. For the two year
period immediately following the Termination Date, Employee shall not at
any time, directly or indirectly, solicit or induce (i) any customers or
clients of Employer or its successors, assigns, subsidiaries or, to the
best of Employee's knowledge, affiliates, or (ii) any vendors or
suppliers of, or consultants then under contract to, Employer or its
successors, assigns, subsidiaries or, to the best of Employee's
knowledge, affiliates, to terminate his, her or its relationship with
Employer or its successors, assigns, subsidiaries or, to the best of
Employee's knowledge, affiliates, for the purpose of associating with
any competitor of Employer or its successors, assigns, subsidiaries or,
to the best of Employee's knowledge, affiliates, or otherwise encourage
such customers or clients, or vendors suppliers or consultants then under
contract, to terminate his, her or its relationship with Employer or its
successors, assigns, subsidiaries or, to the best of Employee's
knowledge, affiliates, for any other reason.
(f) NON-DISPARAGEMENT. Employee shall not, publicly or privately,
disparage or otherwise make any derogatory statement (whether written or
oral) in respect of Employer or any of its subsidiaries or affiliates,
including, without limitation, Colony
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Capital, Inc., its employees, owners and affiliates, or the conduct of
any of their respective business or professional activities, except to
the extent required (i) by an order of a court having jurisdiction or
under subpoena from an appropriate government agency, in which event,
Executive shall use his best efforts to consult with the Board prior to
responding to any such order or subpoena and (ii) to litigate any claim
against Employer for failure to pay any amount due to Employee under the
terms of this Agreement. In the event that Employee shall have breached
or breaches his obligations under this Section 5(f), Employee shall
thereupon forfeit any and all rights he otherwise may have to any
subsequent payment or benefit pursuant to this Agreement.
(g) RIGHTS AND REMEDIES UPON BREACH. If Employee breaches any of
the provisions of this Section 5 (the "Restrictive Covenants"), Employer
and its subsidiaries, affiliates, successors or assigns shall have the
rights and remedies set forth below in this paragraph (g), each of which
shall be independent of the others and severally enforceable, and each
of which shall be in addition to, and not in lieu of, any other rights
or remedies available to Employer or its subsidiaries, affiliates,
successors or assigns at law or in equity.
(i) The right and remedy to have the Restrictive Covenants
specifically enforced by any court of competent jurisdiction by
injunctive decree or otherwise, it being agreed that any breach of the
Restrictive Covenants would cause irreparable injury to Employer or its
subsidiaries, affiliates, successors or assigns and that money damages
would not provide an adequate remedy to Employer or its subsidiaries,
affiliates, successors or assigns.
(ii) Employee acknowledges and agrees that the Restrictive
Covenants are reasonable and valid in geographic and temporal scope and
in all other respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable
the remainder of the Restrictive Covenants shall not thereby be affected
and shall be given full force and effect without regard to the invalid
portions.
(iii) If any court determines that any of the Restrictive
Covenants, or any part thereof, is unenforceable because of the duration
or scope of such provision, such court shall have the power to reduce
the duration or scope of such provision, as the case may be (it being
the intent of the parties that any such reduction be limited to the
minimum extent necessary, to render such provision enforceable), and, in
its reduced form, such provision shall then be enforceable.
(iv) Employee intends to and hereby confers jurisdiction to
enforce the Restrictive Covenants upon the courts of any jurisdiction
within the geographic scope of such covenants. If the courts of any one
or more of such jurisdictions hold the Restrictive Covenants
unenforceable by reason of the breadth of such scope or otherwise, it is
the intention of Employee that such determination not bar or in any way
affect the right of Employer or its subsidiaries, affiliates, successors
or assigns to the relief provided herein in the courts of any other
jurisdiction within the geographic scope of such covenants, as to
breaches of such covenants in such other respective jurisdictions, such
covenants as
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they relate to each jurisdiction being, for this purpose, severable into
diverse and independent covenants.
(6) TERMINATION OF AGREEMENTS. Effective as of the Termination
Date, each of the Management Agreements is hereby terminated in its entirety
without any liability or obligation thereunder on the part of Employer or any
of its subsidiaries or affiliates or Employee.
(7) MISCELLANEOUS.
(a) ENFORCEMENT COSTS. If any action to specifically enforce or
enjoin a breach of this Agreement is necessary, the prevailing party
shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which he or it may be
entitled.
(b) GOVERNING LAW. This Agreement shall be construed and governed
by the laws of the State of Nevada, without giving effect to conflicts
of laws principles thereof which might refer such interpretations to the
laws of a different state or jurisdiction.
(c) BINDING EFFECT. This Agreement, and all of the terms and
conditions hereof, shall bind Employer and its successors and assigns
and shall bind Employee and his heirs, executors and administrators. No
transfer or assignment of this Agreement shall release Employer from any
obligation to Employee hereunder. Neither this Agreement, nor any of
Employee's rights or obligations hereunder, may be assigned or otherwise
subject to hypothecation by Employee. Employer may assign the rights and
obligations of Employer hereunder, in whole or in part, to any of
Employer's subsidiaries, affiliates or parent corporations, or to any
other successor or assign in connection with the sale of all or
substantially all of Employer's assets or stock or in connection with
any merger, acquisition and/or reorganization. In the event of the death
of Employee, any amounts accrued and payable hereunder that, as of the
date of death, have not been paid to Employee shall be paid on behalf of
Employee to Employee's estate at the times specified and otherwise in
accordance with the provisions of this Agreement.
(d) NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by first class mail,
certified or registered with return receipt requested, or by a
nationally recognized overnight delivery service to the respective
parties named below:
Employee:
Xxxxxxx X. Xxxxxxx
X.X. Xxx 0000
000 Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Facsimile: 000-000-0000
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With a copy to:
Xxxxxxx Xxxxxx
Xxxxx, Harrison, Harvey, Branzburg & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: 215-568-6603
Employer:
Harveys Casino Resorts
Attn: Corporate Secretary
Highway 50 and Stateline Xxxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
With a copy to:
Xxxx Xxxxxxxx
Colony Capital, Inc.
Suite 1200
1999 Avenue of the Stars
Xxx Xxxxxxx, XX 00000
Facsimile: 000-000-0000
and to:
Xxxxxxx X. Xxxxxxxxx
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212-225-3999
(e) WAIVER. The several rights and remedies provided for in this
Agreement shall be construed as being cumulative, and no one of them
shall be deemed to be exclusive of the others or of any right or remedy
allowed by law. No waiver by Employer or Employee of any failure by
Employee or Employer, respectively, to keep or perform any provision of
this Agreement shall be deemed to be a waiver of any preceding or
succeeding breach of the same or other provision.
(f) ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with
respect to the employment of Employee by the Employer or the termination
of such employment (including, without limitation, all of the Management
Agreements) and contains all of the covenants, conditions and agreements
between the parties with respect to such employment and termination of
employment. Each party to this Agreement acknowledges that no
representations, inducements, promises or other agreements, oral or
otherwise, have been
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made by any party, or anyone acting on behalf of any party, which are
not embodied herein, and that no other agreement, statement or promise
not contained in this Agreement shall be valid or binding. Any addendum
to or modification of this Agreement shall be effective only if it is
in writing and signed by the parties to be charged.
(g) FINANCING LIMITATIONS. Notwithstanding any other provision of
this Agreement, Employer shall not be obligated or permitted to pay any
amount in respect of the Stock Awards, the Stock Options, the Incentive
Stock Grant Shares or the Deemed SERP Shares or pursuant to any of
Sections 3(d), 3(e) or 3(f) if (i) the payment of such amount would
result in a violation of the terms or provisions of, or result in a
default or an event of default under, any guarantee, financing or
security agreement or document entered into by Employer or any of its
subsidiaries, affiliates or successors (such agreements and documents,
as each may be amended, modified or supplemented from time to time, are
referred to herein as the "FINANCING AGREEMENTS"), in each case as the
same may be amended, modified or supplemented from time to time, or (ii)
the payment of such purchase price would violate any of the terms
or provisions of the Certificate of Incorporation by Employer. In the
event that the payment of any such amount is prevented solely by the
terms of this Section 7(g), the payment of such amount will be postponed
and will be made, with interest at an annual rate of 12% for the period
of delay, at the first opportunity thereafter when Employer has funds
legally available therefor and when the payment of such amount will not
result in any default or event of default or violation by Employer or
any of its subsidiaries, affiliates or successors under any of the
Financing Agreements or in a violation of any term or provision of the
Certificate of Incorporation of the Employer.
(h) TAXES. Employer may withhold from any payments and benefits
made or provided hereunder all federal, state, city and other applicable
income or employment taxes as shall be required by law.
(i) SECTION HEADINGS. The section headings contained herein are
for reference purposes only and shall not in any way affect the meaning
or interpretation of this Agreement.
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(j) COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts together shall
constitute one and the same instrument.
Dated as of this fourth day of January, 2001.
Employee:
/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Employer:
Harveys Casino Resorts
By: /s/ XXXX XXXXXXXXXX
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Name: Xxxx XxXxxxxxxx
Its: Sr. V.P./C.F.O.
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