EXHIBIT 10.1
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this
"AGREEMENT") is made and entered into as of the 5th day of October 2001, by and
between AMERISTAR CASINOS, INC., a Nevada corporation, with its principal
offices located at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000X, Xxx Xxxxx, Xxxxxx
00000 (the "COMPANY"), and XXXXXX X. XXXXXXXX (the "EXECUTIVE").
RECITALS
WHEREAS, the Executive has been employed by the Company as Senior Vice
President of Legal Affairs since September 1, 1999, pursuant to a written
Executive Employment Agreement made and entered into as of August 23, 1999 (the
"PRIOR AGREEMENT"); and
WHEREAS, the Company and the Executive desire to amend and restate the
Prior Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the Company and
the Executive (each individually a "PARTY" and together the "PARTIES") agree as
follows:
TERMS AND CONDITIONS
1. DEFINITIONS. In addition to certain terms defined elsewhere in
this Agreement, the following terms shall have the following respective
meanings:
1.1 "AFFILIATE" shall mean any Person that directly, or
indirectly through one or more intermediaries, controls or is controlled
by or is under common control with the Person specified. For purposes of
this definition, control of a Person means the power, direct or
indirect, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise and, in any
event and without limitation of the previous sentence, any Person owning
ten percent (10%) or more of the voting securities of another Person
shall be deemed to control that Person.
1.2 "BASE SALARY" shall mean the salary provided for in Section
3.1 of this Agreement.
1.3 "BOARD" shall mean the Board of Directors of the Company.
1.4 "CAUSE" shall mean that the Executive:
(a) has been formally charged with or convicted of a
felony or any crime involving fraud, theft, embezzlement,
dishonesty or moral turpitude;
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(b) has participated in fraud, embezzlement, or other
act of dishonesty involving the Company;
(c) has been found unsuitable to hold a gaming license
or has failed in a timely manner to seek or obtain any finding of
suitability or other approval by any gaming regulatory authority
whose license, finding of suitability or other approval is
legally required as a condition of the Executive's performance of
his or her duties and responsibilities under this Agreement;
(d) in carrying out his or her duties under this
Agreement, has engaged in acts or omissions constituting gross
negligence or willful misconduct resulting in, or which, in the
good faith opinion of the Company could be expected to result in,
material economic harm to the Company;
(e) has failed for any reason, within ten (10) days of
receipt by the Executive of written notice thereof from Company,
to correct, cease or alter any action or omission that (i) in the
good faith opinion of the Company does or may materially and
adversely affect its business or operations, (ii) violates or
does not conform with the Company's policies, standards or
regulations, or (iii) constitutes a material breach of this
Agreement;
(f) has disclosed any Confidential Information without
authorization except as otherwise permitted by this Agreement; or
(g) has failed for any reason, within ten (10) days of
receipt by the Executive of written notice thereof from Company,
to correct, cease or alter any action or omission by which the
Executive has breached his or her duty of loyalty to the Company.
The Company shall have the burden of proving Cause in any dispute
proceeding between the Company and the Executive.
1.5 A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) individuals who, as of the date of this Agreement,
constitute the entire Board of Directors of the Company
("INCUMBENT DIRECTORS") cease for any reason to constitute at
least a majority of the Board of Directors of the Company;
provided, however, that any individual becoming a director
subsequent to such date whose election, or nomination for
election by the Company's stockholders, was approved by a vote of
at least a majority of the then Incumbent Directors (other than
an election or nomination of an individual whose assumption of
office is the result of an actual or threatened election contest
relating to the election of directors of the Company), also shall
be an Incumbent Director; or
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(b) the stockholders of the Company shall approve (A)
any merger, consolidation, or recapitalization of the Company
(or, if the capital stock of the Company is affected, any
subsidiary of the Company) or any sale, lease, or other transfer
(in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially
all of the assets of the Company (each of the foregoing being an
"ACQUISITION TRANSACTION") where (1) the stockholders of the
Company immediately prior to such Acquisition Transaction would
not immediately after such Acquisition Transaction beneficially
own, directly or indirectly, shares representing in the aggregate
more than fifty percent (50%) of (a) the then outstanding common
stock of the corporation surviving or resulting from such merger,
consolidation or recapitalization or acquiring such assets of the
Company, as the case may be (the "SURVIVING CORPORATION") (or of
its ultimate parent corporation, if any) and (b) the Combined
Voting Power (as defined below) of the then outstanding Voting
Securities (as defined below) of the Surviving Corporation (or of
its ultimate parent corporation, if any) or (2) the Incumbent
Directors at the time of the initial approval of such Acquisition
Transaction would not immediately after such Acquisition
Transaction constitute a majority of the Board of Directors of
the Surviving Corporation (or of its ultimate parent corporation,
if any) or (B) any plan or proposal for the liquidation or
dissolution of the Company; or
(c) any Person (as defined below) other than a
Permitted Holder (as defined below) shall become the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as amended (THE "EXCHANGE ACT")), directly
or indirectly, of securities of the Company representing in the
aggregate fifty percent (50%) or more of either (i) the then
outstanding shares of the Company Common Stock or (ii) the
Combined Voting Power of all then outstanding Voting Securities
of the Company; provided, however, that notwithstanding the
foregoing, a Change of Control shall not be deemed to have
occurred for purposes of this clause (c) solely as the result of:
(A) an acquisition of securities by the Company
which, by reducing the number of shares of the Company
Common Stock or other Voting Securities outstanding,
increases (i) the proportionate number of shares of the
Company Common Stock beneficially owned by any Person to
fifty percent (50%) or more of the shares of the Company
Common Stock then outstanding or (ii) the proportionate
voting power represented by the Voting Securities
beneficially owned by any Person to fifty percent (50%) or
more of the Combined Voting Power of all then outstanding
Voting Securities; or
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(B) an acquisition of securities directly from
the Company except that this paragraph (B) shall not apply
to:
(1) any conversion of a security that was not
acquired directly from the Company; or
(2) any acquisition of securities if the
Incumbent Directors at the time of the
initial approval of such acquisition would
not immediately after (or otherwise as a
result of) such acquisition constitute a
majority of the Board of Directors of the
Company.
(d) For purposes of this Section 1.5:
(i) "PERSON" shall mean any individual, entity
(including, without limitation, any corporation,
partnership, limited liability company, trust, joint
venture, association or governmental body) or group (as
defined in Section 13(d)(3) or 14(d)(2) of the Exchange
Act and the rules and regulations thereunder); provided,
however, that "Person" shall not include the Company, any
of its subsidiaries, any employee benefit plan of the
Company or any of its majority-owned subsidiaries or any
entity organized, appointed or established by the Company
or such subsidiary for or pursuant to the terms of any
such plan;
(ii) "VOTING SECURITIES" shall mean all
securities of a corporation having the right under
ordinary circumstances to vote in an election of the Board
of Directors of such corporation;
(iii) "COMBINED VOTING POWER" shall mean the
aggregate votes entitled to be cast generally in the
election of directors of a corporation by holders of then
outstanding Voting Securities of such corporation; and
(iv) "PERMITTED HOLDER" shall mean (A) the
Company or any trustee or other fiduciary holding
securities under an employee benefit plan of the Company
and (B) to the extent they hold securities in any capacity
whatsoever, Xxxxx X. Xxxxxxx and Xxx Xxxxxxx and their
respective estates, spouses, heirs, ancestors, lineal
descendants, step children, legatees and legal
representatives, and the trustees of any bona fide trusts
of which one or more of the foregoing are the sole
beneficiaries or grantors thereof and (C) any person
controlled, directly or indirectly, by one or more of the
foregoing Persons referred to in the immediately preceding
clause (B), whether through the ownership of voting
securities, by contract or otherwise.
1.6 "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
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1.7 "COMPANY PROPERTY" shall mean all items and materials
provided by the Company to the Executive, or to which the Executive has
access, in the course of his or her employment, including, without
limitation, all Confidential Information and all other files, records,
documents, drawings, specifications, memoranda, notes, reports, studies,
manuals, equipment, computer disks, videotapes, blueprints and other
documents and similar items relating to the Company, its Affiliates or
their respective customers, whether prepared by the Executive or others,
and any and all copies, abstracts and summaries thereof.
1.8 "COMPETING BUSINESS" shall mean any Person engaged in the
casino gaming industry directly or through an affiliate or subsidiary.
1.9 "CONFIDENTIAL INFORMATION" shall mean all nonpublic and/or
proprietary information respecting the business of the Company or any
Affiliate of the Company, including, without limitation, its products,
programs, projects, promotions, marketing plans and strategies, business
plans or practices, business operations, the identity, compensation and
skill level of employees, research and development, intellectual
property, software, databases, trademarks, pricing information,
accounting and financing data, know how, trade secrets, copyrights,
inventions, patents, data, process, process parameters, methods, product
design information, research and development data, financial records,
operational manuals, technical plans, computer programs, customer lists,
price lists, supplier lists, financial information, and/or all other
compilations of information which relate to the business of the Company,
and any other proprietary material of the Company, which have not been
released by the Company to the general public. Confidential Information
also includes information concerning the Company's or any of its
Affiliate's customers, such as their identity, address, preferences,
playing patterns and ratings or any other information kept by the
Company or any Affiliate of the Company concerning its customers whether
or not such information has been reduced to documentary form.
Confidential Information does not include information that is, or
becomes, available to the public unless such availability occurs through
an unauthorized act on the part of the Executive.
1.10 "DEFERRED COMPENSATION PLAN" shall mean the Company's
Deferred Compensation Plan, as in effect on the date of this Agreement
and as it and may be amended from time to time. The terms and conditions
of such Plan shall be substantially similar during the Executive's
employment under this Agreement as terms and conditions of comparable
deferred compensation arrangements for other senior executive officers
of the Company in effect from time to time.
1.11 "DISABILITY" shall mean a physical or mental incapacity that
prevents the Executive from performing, with or without reasonable
accommodation, the essential functions of his or her position with the
Company for a period of ninety (90) consecutive days as determined: (a)
in accordance with any long-term disability plan provided by the Company
of which the Executive is a participant; or (b) by a licensed healthcare
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professional selected by the Company, in its sole discretion, to
determine whether a Disability exists, to whom the Executive hereby
agrees to submit to medical examinations. In addition, the Executive may
submit to the Company documentation of a Disability, or lack thereof,
from a licensed healthcare professional of his or her choice. Following
a determination of a Disability or lack of Disability by the Company's
or the Executive's licensed healthcare professional, the other Party may
submit subsequent documentation relating to the existence of a
Disability from a licensed healthcare professional selected by such
other party. In the event that the medical opinions of such licensed
healthcare professionals conflict, such licensed healthcare
professionals shall appoint a third licensed healthcare professional to
examine the Executive, and the opinion of such third licensed healthcare
professional shall be dispositive.
1.12 "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.13 "GOOD REASON" as used in this Agreement shall mean and exist
if, without the Executive's prior written consent, one or more of the
following events occurs and the Company fails for any reason, within ten
(10) days of receipt by the Company of written notice thereof from the
Executive, to correct, cease or alter any action or omission causing any
such events:
(a) the Executive is assigned any significant duties or
responsibilities that are inconsistent with the scope of duties
and responsibilities associated with the Executive's position as
described in Section 2.3 including without limitation (i) the
appointment of any person other than the Executive as the
principal legal affairs officer of the Company, or (ii) the
requirement that the Executive report to any person other than
the Chief Executive Officer of the Company;
(b) the Executive is required to relocate from, or
maintain his or her principal office outside of, a twenty-five
(25) mile radius of his or her principal office location as of
the date of this Agreement;
(c) the Executive's Base Salary is decreased by the
Company;
(d) the failure of the Company to award the Executive
an annual bonus equal to at least seventy-five percent (75%) of
the average amount of the annualized bonus paid to the Executive
for the last two (2) full years;
(e) the Executive is excluded from participation in any
employee benefit or short-term incentive plan or program or his
or her benefits under such plans or programs are materially
reduced in violation of Section 4.1 or any other provision of
this Agreement;
(f) the Company fails to pay the Executive any deferred
payments that have become payable under the Deferred Compensation
Plan;
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(g) the Company fails to reimburse the Executive for
business expenses properly incurred in accordance with the
Company's policies, procedures or practices;
(h) the Company fails to obtain a written agreement
from any assignee of the Company to assume the obligations under
this Agreement, the Indemnification Agreement and any and all
stock option and restricted stock agreements between the
Executive and the Company (or a substantially equivalent
replacement for such stock option and restricted stock
agreements) upon an assignment of this Agreement in a sale of
assets constituting a Change in Control; or
(i) a material breach by the Company of its obligations
under this Agreement, the Indemnification Agreement, or any
written plan documents or agreements of the Company defining
stock option rights, restricted stock rights or employee benefit
plans rights of the Executive.
If the Company disputes the existence of Good Reason, the Company
shall have the burden of proving the absence of Good Reason.
1.14 "INDEMNIFICATION AGREEMENT" means that certain
Indemnification Agreement dated August 23, 1999, by and between the
Company and the Executive.
1.15 "PERSON" shall mean any individual, firm, partnership,
association, trust, company, corporation, limited liability company or
other entity.
1.16 "RESTRICTED AREA" shall mean the areas within a fifty (50)
mile radius of any location at which the Company or one of its
Affiliates operates a casino, or has publicly announced an intention to
operate a casino, on the date of termination or expiration of the
Executive's employment; provided, however, that (i) if the Company or
one of its Affiliates operates a casino, or has publicly announced an
intention to operate a casino, in the Las Vegas Strip and/or Las Vegas
Downtown market areas but not in the Las Vegas Locals market area, then
the Restricted Area in respect of such casino or casinos shall be
applicable only to Las Vegas Strip and Las Vegas Downtown market area
casinos, and (ii) if the Company or one of its Affiliates operates a
casino, or has announced an intention to operate a casino, in the Las
Vegas Locals market area but not in the Las Vegas Strip and/or Las Vegas
Downtown market areas, then the Restricted Area in respect of such
casino or casinos shall be applicable only to Las Vegas Locals market
area casinos.
1.17 "RESTRICTION PERIOD" shall mean the period ending
twenty-four (24) months after the termination or expiration of the Term
of Employment, regardless of the reason for such termination or
expiration; provided, however, that the Restriction Period shall mean
the period ending twelve (12) months after the termination or expiration
of the
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Term of Employment, regardless of the reason for such termination or
expiration, within eighteen (18) months following a Change in Control.
1.18 "TERM OF EMPLOYMENT" shall mean the period specified in
Section 2.2.
2. TERM OF EMPLOYMENT, POSITION AND RESPONSIBILITIES.
2.1 EMPLOYMENT CONTINUED. The Company hereby continues the
employment of the Executive, and the Executive hereby accepts continued
employment with the Company, for the Term of Employment, in the position
and with the duties and responsibilities set forth in Section 2.3, and
upon such other terms and subject to such other conditions as are stated
in this Agreement.
2.2 TERM OF EMPLOYMENT. Unless earlier terminated pursuant to the
provisions of this Agreement, the initial Term of Employment shall
terminate at the close of business on December 31, 2002; provided,
however, that the initial Term of Employment shall automatically be
extended for successive one-year terms, unless either Party gives
written notice of termination in accordance with Section 13 ninety (90)
days prior to the expiration of the then-present Term of Employment. In
the event that such notice is given, the Executive's employment shall
terminate at the close of business on December 31, of that year and in
that event that date shall be the Executive's last day of employment.
The Executive's commencement date for employee benefit purposes shall be
deemed to be the commencement date of the Executive's employment by the
Company under the Prior Agreement.
2.3 TITLE AND RESPONSIBILITIES. During the Term of Employment,
the Executive shall be employed as Senior Vice President of Legal
Affairs of the Company and will perform such other duties and services
as, from time to time, are reasonably required by the Company's Chief
Executive Officer or Board. The Executive shall be appointed by the
Board as a corporate executive officer of the Company at all times
during the Term of Employment. The Executive will report directly to the
Chief Executive Officer of the Company. During the Term of Employment,
the Company will not reduce the title or responsibilities of the
Executive. During the Term of Employment, the Executive shall devote
substantially all of his or her business time and attention to the
business and affairs of the Company and any and all Company subsidiaries
and other Company affiliates and shall use his or her best efforts,
skills and abilities to promote the Company's interests. Anything herein
to the contrary notwithstanding, the Executive shall not be precluded
from engaging in charitable and community affairs and managing his or
her personal investments, as long as such activities do not materially
detract from the Executive's performance of his or her duties under this
Agreement. The Executive may serve as a member of the board of directors
of corporations and limited liability companies, subject to the approval
of a majority of the Board.
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3. COMPENSATION.
3.1 BASE SALARY. During the Term of Employment, the Executive
shall be entitled to receive a base salary (the "BASE SALARY") payable
in monthly or more frequent installments as shall be established by the
Company as its normal payroll practice from time to time or as required
by applicable law at an annualized rate of no less than Three Hundred
and Fifty Thousand Dollars and 00/100 ($350,000), subject to reduction
for any and all applicable federal, state, and local withholding, social
security, and unemployment taxes. Such Base Salary shall be reviewed
annually as of the anniversary of the Executive's date of hire for
increase (but not decrease) in the discretion of the Company, including
without limitation on a retroactive basis as of the 2001 anniversary of
the Executive's date of hire. In conducting any such annual review, the
Company shall consider any change in the Executive's responsibilities,
the performance of the Executive and/or other factors deemed pertinent
by the Company. Such increased Base Salary shall then constitute the
Executive's "Base Salary" for purposes of this Agreement.
3.2 ANNUAL BONUS. Based on merit and the financial performance of
the Company, the Executive will be eligible to receive a discretionary
bonus for each fiscal year of the Company equal to up to fifty (50%) of
the Executive's weighted average Base Salary for such fiscal year
("ANNUAL BONUS"). Any Annual Bonus that may be awarded to the Executive
shall be paid at the same time as annual bonuses are paid to other
similarly situated management personnel of the Company, unless the
Executive has elected to defer receipt of all or part of the bonus
amounts to which he or she is entitled in respect of any such calendar
year, in accordance with the terms and provisions of any Deferred
Compensation Plan maintained by the Company.
3.3 DEFERRED COMPENSATION. The Executive shall be eligible to
participate in the Company's Deferred Compensation Plan pursuant to the
terms of that plan.
4. EMPLOYEE BENEFIT PROGRAMS.
4.1 PENSION AND WELFARE BENEFIT PLANS. In addition to the
benefits provided for in Section 3.3, during the Term of Employment, the
Executive shall be entitled to participate in all employee benefit plans
and programs made available to similarly situated senior management
personnel of the Company generally, as such programs may be in effect
from time to time, including, without limitation, pension and other
retirement plans, profit sharing plans, group life insurance, group
health insurance, group health supplemental insurance coverage through
the Company's Exec-U-Care Medical Plan or a substitute plan, accidental
death and dismemberment insurance, long-term disability, sick leave
(including salary continuation arrangements), vacations, paid time off,
holidays and other employee benefit programs as such plans and programs
are exclusively described in written plan and program documents, subject
to the eligibility criteria, rules, plan provisions and regulations
applicable to such plans and programs and to the provisions of ERISA and
the Code. Nothing contained herein shall be construed as negating or
limiting
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the ability of the Company to amend, modify or terminate such employee
benefit programs or plans, in its sole discretion.
4.2 ADDITIONAL BENEFITS. Notwithstanding Section 4.1 and in
addition to the benefits provided for in Section 3.3, the Company shall
provide the Executive during the Executive's Term of Employment with (a)
supplemental term life insurance coverage in an aggregate amount of not
less than One Million Dollars and 00/100 ($1,000,000) through individual
term and/or group term policies, and (b) group health supplemental
insurance coverage through the Company's Exec-U-Care Medical Plan, or
pursuant to such plan or plans as the Company may select from time to
time, provided that such plan or plans shall provide benefits
substantially similar to those generally available to senior executives
of the Company, and shall be fully paid for by the Company. Except as
may otherwise be expressly provided in this Agreement, the Company shall
not be responsible in any way for any income or other tax liabilities of
the Executive due in connection with the receipt by the Executive of any
compensation, benefits or perquisites from the Company.
5. BUSINESS EXPENSE REIMBURSEMENT AND PERQUISITES.
5.1 EXPENSE REIMBURSEMENT. During the Term of Employment, the
Executive shall be entitled to receive reimbursement by the Company for
all reasonable out-of-pocket expenses incurred by him or her in
performing services under this Agreement, including any relocation
expenses in accordance with Company policies, subject to providing the
proper documentation of said expenses and subject to Company policies in
effect from time to time with respect thereto.
5.2 PERQUISITES. During the Term of Employment, the Executive
shall also be entitled to any of the Company's executive perquisites,
including vacations and other paid time off, in accordance with the
written terms and provisions of the documents exclusively defining
applicable policies, including, without limitation:
(a) the Executive will receive hotel, food and beverage
complimentary privileges for business and personal use at the
properties operated by the Company's subsidiaries;
(b) the Executive will be eligible for complimentary
use of the Company's condominiums in Sun Valley, Idaho, for so
long as the Company retains such leased condominiums.; and
(c) the Company will pay the Executive's bar
association and other professional association dues and the
Executive's expenses of continuing legal education required as a
condition of the Executive's license to practice law or
reasonably related to the Executive's duties and
responsibilities.
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6. TERMINATION OF EMPLOYMENT.
6.1 TERMINATION DUE TO DEATH OR DISABILITY. The Executive's
employment shall be terminated immediately in the event of his or her
death or Disability. In the event of a termination due to the
Executive's death or Disability, the Executive or his or her beneficiary
designated in Section 16, or if none, his or her estate, as the case may
be, shall be entitled, in consideration of the Executive's obligations
under Section 10 and in lieu of any other compensation whatsoever, to:
(a) earned but unpaid Base Salary at the time of his or
her death or Disability;
(b) any Annual Bonus earned pursuant to Section 3.2, in
respect of employment during the entire calendar year preceding
the calendar year in which death or Disability occurs, but not
yet paid;
(c) any deferred compensation or bonuses, including
interest or other credits on the deferred amounts, to the extent
provided in written plan documents and agreements;
(d) reimbursement for expenses incurred but not paid
prior to such termination of employment pursuant to Section 5.1;
(e) an amount equal to any accrued but unused vacation
or other paid time off as of the termination of employment;
(f) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining
stock option rights, restricted stock rights and applicable
employee benefit plans and programs, according to the terms and
conditions of such documents and agreements, and as further set
forth in Sections 4.1 and 4.2 of this Agreement; and
(g) any and all amounts owed by the Company under
Sections 6.1(a), 6.1(b), 6.1(d) and 6.1(e) shall be paid by the
Company within sixty (60) days of the date of termination of
employment. Any and all amounts owed by the Company under
Sections 6.1(c) and 6.1(f) shall be paid at the later of sixty
(60) days following the date of termination or the date(s)
specified under the applicable written plan documents or
agreements.
6.2 TERMINATION BY THE COMPANY FOR CAUSE. The Company may
terminate the Executive's employment for Cause at any time during the
Term of Employment by giving written notice to the Executive that the
Company intends to terminate his or her employment for Cause. In the
event of a termination for Cause, the Executive shall be
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entitled, in consideration of the Executive's obligations under Section
10 and in lieu of any other compensation whatsoever, to:
(a) earned but unpaid Base Salary through the date of
termination of employment;
(b) any Annual Bonus earned pursuant to Section 3.2, in
respect of employment during the entire calendar year preceding
the calendar year in which termination occurs, but not yet paid;
(c) any deferred compensation or bonuses, including
interest or other credits on the deferred amounts, to the extent
provided in written plan documents and agreements;
(d) reimbursement for expenses incurred but not paid
prior to such termination of employment pursuant to Section 5.1;
(e) an amount equal to any accrued but unused vacation
or other paid time off as of the termination of employment;
(f) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining
stock option rights, restricted stock rights and applicable
employee benefit plans and programs, according to the terms and
conditions of such documents and agreements, and as further set
forth in Sections 4.1 and 4.2 of this Agreement; and
(g) any and all amounts owed by the Company under
Sections 6.2(a), 6.2(b), 6.2(d), and 6.2(e) shall be paid by the
Company within sixty (60) days of the date of termination of
employment. Any and all amounts owed by the Company under
Sections 6.2(c) and 6.2(f) shall be paid at the later of sixty
(60) days following the date of termination or the date(s)
specified under the applicable written plan documents or
agreements.
No termination for Cause and nothing in this Agreement shall waive or be
deemed to waive any rights or claims or remedies as may be available to
the Company arising out of the facts giving rise to such termination for
Cause.
6.3 TERMINATION BY THE EXECUTIVE WITHOUT GOOD REASON. The
Executive may terminate his or her employment without Good Reason on his
or her own initiative for any reason prior to a Change in Control upon
thirty (30) days' prior written notice to the Company. Such termination
shall have the same consequences as a termination by the Company for
Cause under Section 6.2.
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6.4 TERMINATION BY THE EXECUTIVE FOR GOOD REASON. Notwithstanding
any other provision of this Agreement, the Executive may terminate his
or her employment hereunder at any time during the Term of Employment
for Good Reason (as defined in Section 1.13 of this Agreement) by giving
thirty (30) days' written notice to the Company that the Executive
intends to terminate his or her employment for Good Reason. In the event
of a termination by the Executive for Good Reason, the Executive shall
be entitled, in consideration of the Executive's obligations under
Section 10 and in lieu of any other compensation and benefits
whatsoever, to:
(a) an amount equal to two (2) times the Executive's
Base Salary at the rate in effect at the time of his or her
termination, which shall be paid out in equal installments for
the duration of the Restriction Period at the same frequency as
the Company's regular payroll payments;
(b) earned but unpaid Base Salary through the date of
termination of employment;
(c) any Annual Bonus earned pursuant to Section 3.2, in
respect of employment during the entire calendar year preceding
the calendar year in which termination occurs, but not yet paid;
(d) any deferred compensation or bonuses, including
interest or other credits on the deferred amounts, to the extent
provided in written plan documents and agreements;
(e) reimbursement for expenses incurred but not paid
prior to such termination of employment pursuant to Section 5.1;
(f) an amount equal to any accrued but unused vacation
or other paid time off as of the termination of employment;
(g) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining
stock option rights, restricted stock rights and applicable
employee benefit plans and programs, according to the terms and
conditions of such documents and agreements, and as further set
forth in Sections 4.1 and 4.2 of this Agreement;
(h) continuation of the Executive's group health
insurance, at the Company's expense, for eighteen (18) months
after the termination of employment or, at the Company's option,
payment to the Executive of the economic equivalent thereof,
which shall constitute the provision of COBRA benefits to the
Executive; and
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(i) any and all amounts owed by the Company under
Sections 6.4(b), 6.4(c), 6.4(e) and 6.4(f) shall be paid by the
Company within sixty (60) days of the date of termination of
employment. Any and all amounts owed by the Company under
Sections 6.4(d), 6.4(g) and 6.4(h) shall be paid at the later of
sixty (60) days following the date of termination or the date(s)
specified under the applicable written plan documents or
agreements.
6.5 TERMINATION BY THE COMPANY WITHOUT CAUSE. Notwithstanding any
other provision of this Agreement, the Company may terminate the
Executive's employment without Cause, other than due to death or
Disability, at any time during the Term of Employment by giving written
notice to the Executive that the Company intends to terminate his or her
employment without Cause. In the event that the Company terminates the
Executive's employment without Cause, the Executive shall be entitled,
in consideration of the Executive's obligations under Section 10 and in
lieu of any other compensation and benefits whatsoever, to:
(a) a payment amount equal to two (2) times the
Executive's annualized Base Salary, at the rate in effect at the
time of his or her termination, which shall be paid out in equal
installments for the duration of the Restriction Period at the
same frequency as the Company's regular payroll payments;
(b) earned but unpaid Base Salary through the date of
termination of employment;
(c) any Annual Bonus earned pursuant to Section 3.2, in
respect of employment during the entire calendar year preceding
the calendar year in which termination occurs, but not yet paid;
(d) any deferred compensation or bonuses, including
interest or other credits on the deferred amounts, to the extent
provided in written plan documents and agreements;
(e) reimbursement for expenses incurred but not paid
prior to such termination of employment pursuant to Section 5.1;
(f) an amount equal to any accrued but unused vacation
or other paid time off as of the termination of employment;
(g) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining
stock option rights, restricted stock rights and applicable
employee benefit plans and programs, according to the terms and
conditions of such documents and agreements, and as further set
forth in Sections 4.1 and 4.2 of this Agreement;
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(h) continuation of the Executive's group health
insurance, at the Company's expense, for eighteen (18) months
after the termination of employment or, at the Company's option,
payment to the Executive of the economic equivalent thereof,
which shall constitute the provision of COBRA benefits to the
Executive; and
(i) any and all amounts owed by the Company under
Sections 6.5(b), 6.5(c), 6.5 (e) and 6.5(f) shall be paid by the
Company within sixty (60) days of the date of termination of
employment. Any and all amounts owed by the Company under
Sections 6.5(d), 6.5(g) and 6.5(h) shall be paid at the later of
sixty (60) days following the date of termination or the date(s)
specified under the applicable written plan documents or
agreements.
6.6 TERMINATION DUE TO EXPIRATION OF THE TERM OF EMPLOYMENT. If
either Party elects not to extend the initial Term of Employment or any
successive Term of Employment, the Executive shall not be entitled to
any additional compensation after the expiration thereof except as may
be expressly provided for herein, but such termination of employment
shall not otherwise affect accrued but unpaid compensation or benefits
provided under this Agreement or pursuant to any Company plan or
program. Notwithstanding the foregoing, if the Company elects not to
extend the initial Term of Employment or any successive Term of
Employment, such election shall have the same consequences as a
termination of the Executive's employment without Cause, effective as of
the last day of the then current Term of Employment, unless the
Executive's employment is otherwise terminated prior to the last day of
the then current Term of Employment, in which case the consequences of
such termination of employment shall be dependent upon the basis for
such termination of employment as provided in this Agreement.
7. CHANGE IN CONTROL.
7.1 CHANGE IN CONTROL PAYMENT. Immediately upon a Change in
Control, in addition to any other compensation or benefits payable
pursuant to this Agreement or otherwise, the Executive shall be entitled
to a payment in cash equal to two (2) times his or her Base Salary,
without regard to continued employment or termination thereof under this
Agreement. Unless otherwise provided for in this Agreement, the
Executive's rights under a Change in Control to benefits under programs,
plans and policies of the Company shall be determined according to the
written terms and provisions of documents exclusively defining such
programs, plans and policies.
7.2 TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE
FOR GOOD REASON AFTER A CHANGE IN Control. If within twelve (12) months
following a Change in Control, the Executive's employment is terminated
by the Company without Cause or by the Executive for Good Reason, the
Executive shall be entitled, in addition to any payment paid or payable
pursuant to Section 7.1, but in lieu of any other
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compensation and benefits whatsoever (including but not limited to the
compensation and benefits pursuant to Sections 6.4 and 6.5), to:
(a) an amount equal to one (1) times the Executive's
annualized Base Salary at the rate in effect at the time (i) of
his or her termination or (ii) immediately preceding the Change
in Control, whichever is greater, which shall be paid out in
equal installments for the duration of the Restriction Period at
the same frequency as the Company's regular payroll payments;
(b) earned but unpaid Base Salary through the date of
termination of employment;
(c) any Annual Bonus earned pursuant to Section 3.2, in
respect of employment during the entire calendar year preceding
the calendar year in which termination occurs, but not yet paid;
(d) any deferred compensation or bonuses, including
interest or other credits on the deferred amounts, to the extent
provided in written plan documents and agreements;
(e) reimbursement for expenses incurred but not paid
prior to such termination of employment pursuant to Section 5.1;
(f) an amount equal to any accrued but unused vacation
or other paid time off as of the termination of employment;
(g) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining
stock option rights, restricted stock rights and applicable
employee benefit plans and programs, according to the terms and
conditions of such documents and agreements, and as further set
forth in Sections 4.1 and 4.2 of this Agreement;
(h) continuation of the Executive's group health
insurance, at the Company's expense, for eighteen (18) months
after the termination of employment or, at the Company's option,
payment to the Executive of the economic equivalent thereof,
which shall constitute the provision of COBRA benefits to the
Executive; and
(i) any and all amounts owed by the Company under
Sections 7.2(b), 7.2(c), 7.2 (e) and 7.2(f) shall be paid by the
Company within sixty (60) days of the date of termination of
employment. Any and all amounts owed by the Company under
Sections 7.2(d), 7.2(g) and 7.2(h) shall be paid at the later of
sixty (60) days following the date of termination or the date(s)
specified under the applicable written plan documents or
agreements.
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7.3 TERMINATION FOR OTHER REASONS AFTER A CHANGE IN CONTROL. If
the Executive's employment is terminated after a Change in Control for
any reason not otherwise provided for in this Section 7 (including
without limitation a termination by the Company without Cause or a
termination by the Executive for Good Reason more than twelve (12)
months following the Change in Control), his or her rights shall be
determined in accordance with the applicable subsection in Section 6.
8. CONDITIONS TO PAYMENTS UPON TERMINATION.
8.1 TIMING OF PAYMENTS. Unless otherwise provided herein, any
payments to which the Executive shall be entitled under Sections 6 and 7
shall be payable upon the satisfaction of the conditions set forth in
this Agreement.
8.2 NO MITIGATION; NO OFFSET. In the event of any termination of
the Executive's employment under Sections 6 or 7, the Executive shall be
under no obligation to seek other employment, and there shall not be
offset against amounts due to the Executive any remuneration
attributable to any subsequent employment that the Executive may obtain.
Notwithstanding any contrary provision contained herein, in the event of
any termination of employment of the Executive, the exclusive remedies
available to the Executive shall be the amounts due under Sections 6 or
7, which are in the nature of liquidated damages, and are not in the
nature of a penalty. In the event of a termination of this Agreement,
neither Party shall publish in any way or make any negative comment or
statement about the other Party or concerning the reasons for such
termination; provided, however, that this sentence shall not apply to
written or oral testimony by either Party or their respective employees
or agents or representatives in litigation, arbitration or
administrative proceedings in which the Parties are adverse. The
provisions of this Section 8.2 shall survive the expiration or earlier
termination of this Agreement.
8.3 COMPLIANCE WITH THE AGREEMENT. No payments or benefits
payable to the Executive upon the termination of his or her employment
pursuant to Sections 6 or 7 shall be made to the Executive if he or she
fails to comply with all of the terms and conditions of this Agreement,
including, without limitation, Sections 10 and 11.
8.4 PAYMENTS UPON TERMINATION CONDITIONED ON RELEASE OF CLAIMS.
Any payments to the Executive under Sections 6 or 7 shall be subject to
the condition that the Executive accepts and executes, without
subsequent revocation, a release of claims substantially in the form
attached hereto as Exhibit A.
8.5 CONTINUING OBLIGATIONS OF THE EXECUTIVE. No act or omission
by the Executive in breach of this Agreement, shall be deemed to permit
the Executive to forego or waive such payments in order to avoid his or
her obligations under Sections 10 or 11.
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9. SPECIAL REIMBURSEMENT.
9.1 If any payment or benefit paid or payable, or received or to
be received, by or on behalf of the Executive in connection with a
Change in Control pursuant to Section 7.1 or the termination of the
Executive's employment pursuant to Section 7.2, whether any such
payments or benefits are pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company, any Affiliate of
the Company, any Person, or otherwise (the "TOTAL PAYMENTS"), will or
would be subject to the excise tax imposed under Section 4999 of the
Code (the "EXCISE TAX"), the Company shall pay to the Executive an
additional amount (the "GROSS-UP PAYMENT") such that, after payment by
the Executive of all taxes (including any interest or penalties imposed
with respect to such taxes) imposed upon or in respect of the Gross-Up
Payments, including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and any Excise Tax
imposed thereon, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Total Payments.
9.2 For purposes of determining whether any of the Total Payments
will be subject to the Excise Tax and the amount of such Excise Tax, the
Total Payments shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) of the Code shall be
treated as subject to the Excise Tax, unless it is reasonably determined
by tax counsel or another professional adviser selected by the Company
(which determination shall be provided to the Executive) that such Total
Payments (in whole or in part) (i) do not constitute parachute payments,
including (without limitation) by reason of Section 280G(b)(4)(A) of the
Code, (ii) such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered, within
the meaning of Section 280G(b)(4)(B) of the Code, or (iii) are not
otherwise subject to the Excise Tax.
9.3 In the event that the Excise Tax is subsequently determined
to be less than the amount taken into account hereunder, the Executive
shall repay to the Company, at the time that the amount of such
reduction in Excise Tax is finally determined, the portion of the
Gross-Up Payment attributable to such reduction plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B)
of the Code. In the event that the Excise Tax is determined to exceed
the amount taken into account hereunder as of either the date of the
Change in Control or the date of actual payment, whichever is applicable
(including by reason of any payment the existence or amount of which
cannot be determined at the time of the initial Gross-Up Payment), the
Company shall make an additional Gross-Up Payment in accordance with
Section 9.1 in respect of such excess Excise Tax (plus any interest,
penalties or additions payable by the Executive with respect to such
excess Excise Tax) at the time that the amount of such excess Excise Tax
is finally determined. The Executive and the Company shall each
reasonably cooperate with each other in connection with any
administrative or judicial proceedings concerning
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the existence or amount of any such subsequent liability for Excise Tax
with respect to the Total Payments.
10. COVENANT NOT TO ENGAGE IN CERTAIN ACTS.
10.1 GENERAL. The Parties understand and agree that the purpose
of the restrictions contained in this Section 10 is to protect the
goodwill and other legitimate business interests of the Company, and
that the Company would not have entered into this Agreement in the
absence of such restrictions. The Executive acknowledges and agrees that
the restrictions are reasonable and do not, and will not, unduly impair
his or her ability to make a living after the termination of his or her
employment with the Company. The provisions of this Section 10 shall
survive the expiration or sooner termination of this Agreement.
10.2 NON-ASSISTANCE; NON-DIVERSION. In consideration for this
Agreement to employ the Executive and the other valuable consideration
provided hereunder, the Executive agrees and covenants that during the
Term of Employment and during the Restriction Period, and except when
acting on behalf of the Company or on behalf of any Affiliate of the
Company, the Executive shall not, directly or indirectly, for himself or
any third party, or alone or as a member of a partnership or limited
liability company, or as an officer, director, shareholder, member or
otherwise, engage in the following acts:
(a) divert or attempt to divert any existing business
of the Company or any Affiliate of the Company;
(b) accept any position or affiliation or assignment
with, or render any services (whether as an independent
contractor or employee) on behalf of, any Competing Business
within the Restricted Area;
(c) accept any position or affiliation or assignment or
render any services (whether as an independent contractor or
employee) within the corporate, divisional or regional
headquarters or corporate, divisional or regional management
group of any Competing Business whose operations and properties
include one or more casinos within the Restricted Area; or
(d) induce, solicit, attempt to solicit, encourage,
divert, cause or attempt to cause any employee or prospective
employee of the Company or any Affiliate of the Company to (i)
provide services for any other Person, or (ii) terminate and/or
leave such employment, or (iii) accept employment with anyone
other than the Company or an Affiliate of the Company.
10.3 CESSATION/REIMBURSEMENT OF PAYMENTS. If the Executive
violates any provision of this Section 10, the Company may, upon giving
written notice to the Executive, immediately cease all payments and
benefits that it may be providing to the Executive pursuant to Section
3, Section 4, Section 6 and Section 7.2, and the Executive
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shall be required to reimburse the Company for any payments received
from, and the cash value of any benefits provided by, the Company
between the first day of the violation and the date such notice is
given; provided, however, that the foregoing shall be in addition to
such other remedies as may be available to the Company and shall not be
deemed to permit the Executive to forego or waive such payments in order
to avoid his or her obligations under this Section 10; and provided,
further, that any release of claims by the Executive pursuant to Section
8.4 shall continue in effect.
10.4 SURVIVAL. The Executive agrees that the provisions of this
Section 10 shall survive the termination of this Agreement and the
termination of the Executive's employment.
11. CONFIDENTIAL INFORMATION AND COMPANY PROPERTY.
11.1 CONFIDENTIAL INFORMATION. The Executive understands and
acknowledges that Confidential Information constitutes a valuable asset
of the Company and its Affiliates and may not be converted to the
Executive's own or any third party's use. Accordingly, the Executive
hereby agrees that he or she shall not, directly or indirectly, during
the Term of Employment or any time thereafter, disclose any Confidential
Information to any Person not expressly authorized by the Company to
receive such Confidential Information. The Executive further agrees that
he or she shall not directly or indirectly, during the Term of
Employment, or any time thereafter, use or make use of any Confidential
Information in connection with any activity other than the business of
the Company. The Parties acknowledge and agree that this Agreement is
not intended to, and does not, alter either the Company's rights or the
Executive's obligations under any state or federal statutory or common
law regarding trade secrets and unfair trade practices.
11.2 COMPANY PROPERTY. All Company Property is and shall remain
exclusively the property of the Company. Unless authorized in writing to
the contrary, the Executive shall promptly, and without charge, deliver
to the Company on the termination of employment hereunder, or at any
other time the Company may so request, all Company Property that the
Executive may then possess or have under his or her control.
11.3 REQUIRED DISCLOSURE. In the event the Executive is required
by law or court order to disclose any Confidential Information or to
produce any Company Property, the Executive shall promptly notify the
Company of such requirement and provide the Company with a copy of any
court order or of any law which requires such disclosure and, if the
Company so elects, to the extent permitted by applicable law, give the
Company an adequate opportunity, at its own expense, to contest such law
or court order prior to any such required disclosure or production by
the Executive.
11.4 SURVIVAL. The Executive agrees that the provisions of this
Section 11 shall survive the termination of this Agreement and the
termination of the Executive's employment.
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12. MUTUAL ARBITRATION AGREEMENT.
12.1 ARBITRABLE CLAIMS. All disputes between the Executive (and
his or her attorneys, successors, and assigns) and the Company (and its
trustees, beneficiaries, officers, directors, members, managers,
Affiliates, employees, agents, successors, attorneys, and assigns)
relating in any manner whatsoever to the employment of or termination of
employment of the Executive, including, without limitation, all disputes
arising under this Agreement ("ARBITRABLE CLAIMS"), shall be resolved by
binding arbitration as set forth in this Section 12, except for claims
set forth in Section 12.4 (the "MUTUAL ARBITRATION AGREEMENT").
Arbitrable Claims shall include, but are not limited to: claims brought
under Title VII of the Civil Rights Acts of 1964, the Civil Rights Act
of 1991, the Age Discrimination in Employment Act of 1967 (including the
Older Workers Benefit Protection Act), the Americans with Disabilities
Act, the Fair Labor Standards Act, the Equal Pay Act, the Family and
Medical Leave Act, ERISA, or any other applicable federal, state or
local labor or fair employment law, all as amended from time to time;
claims for compensation; claims for breach of any contract or covenant
(express or implied); tort claims of all kinds; and all claims based on
any federal, state, or local law, statute or regulation. Arbitration
shall be final and binding upon the parties and shall be the exclusive
remedy for all Arbitrable Claims. THE PARTIES HEREBY WAIVE ANY RIGHTS
THEY MAY HAVE TO TRIAL BY JUDGE OR JURY IN REGARD TO ARBITRABLE CLAIMS,
EXCEPT AS PROVIDED BY SECTION 12.4.
12.2 PROCEDURE. Arbitration of Arbitrable Claims shall be in
accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association, as amended, and as
augmented in this Agreement. Either Party may bring an action in court
to compel arbitration under this Agreement and to enforce an arbitration
award. Otherwise, neither Party shall initiate or prosecute any court
action in any way related to an Arbitrable Claim. All arbitration
hearings under this Agreement shall be conducted in Los Angeles,
California or Las Vegas, Nevada, as the arbitrator may determine shall
be the more convenient forum. Unless otherwise required by law or as may
be required to uphold the enforceability of this Mutual Arbitration
Agreement, the fees and costs of the arbitrator and of the American
Arbitration Association shall be divided equally between both Parties.
12.3 CONFIDENTIALITY. All proceedings and all documents prepared
in connection with any Arbitrable Claim shall be confidential and,
unless otherwise required by law, the subject matter and content thereof
shall not be disclosed to any Person other than the parties to the
proceedings, their counsel, witnesses and experts, the arbitrator and,
if involved, the court and court staff.
12.4 APPLICABILITY. This Section 12 shall apply to all disputes
under this Agreement other than disputes relating to the enforcement of
the Company's rights under Sections 10 and 11 of this Agreement and the
Company's right to seek injunctive relief as provided in Section 14.
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12.5 ACKNOWLEDGMENT. The Executive acknowledges that he or she:
(a) has carefully read this Section 12;
(b) understands its terms and conditions; and
(c) has entered into this Mutual Arbitration Agreement
voluntarily and not in reliance on any promises or
representations made by the Company other than those contained in
this Mutual Arbitration Agreement.
13. NOTICES. All notices, demands and requests required or permitted
to be given to either Party under this Agreement shall be in writing and shall
be deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address as
such Party may subsequently give notice of:
If to the Company: Ameristar Casinos, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000 Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
If to the Executive: Xxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
14. RIGHT TO SEEK INJUNCTIVE RELIEF. The Executive acknowledges that
a violation on his or her part of any of the covenants contained in Sections 10
and 11 would cause immeasurable and irreparable damage to the Company. The
Executive accordingly agrees and hereby grants his or her consent that, without
limiting the remedies available to the Company, any actual or threatened
violation of such covenants may be enforced by injunctive relief or by other
equitable remedies issued or ordered by any court of competent jurisdiction.
15. EMPLOYEE BENEFIT PLAN DOCUMENTS. In the event that any terms or
provisions of this Agreement conflict with the terms and provisions of any
employee benefit plan document, the terms and provisions of such employee
benefit plan document shall govern; and the Company shall take any and all
actions that may be necessary, including amendment of any plan document, to the
extent necessary to effect the provision of benefits expressly provided upon
termination of the Executive's employment pursuant to Sections 6 and 7.
16. BENEFICIARIES/REFERENCES. The Executive shall be entitled to
select a beneficiary or beneficiaries to receive any compensation or benefit
payable hereunder following the Executive's death, and may change such election,
by giving the Company written notice
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thereof. In the event of the Executive's death or a judicial determination of
his or her incompetence, reference in this Agreement to the Executive shall be
deemed, where appropriate, to refer to his or her beneficiary, estate or other
legal representative.
17. SURVIVORSHIP. The respective rights and obligations of the
Parties hereunder shall survive the expiration or any earlier termination of
this Agreement to the extent necessary to the intended preservation of such
rights and obligations. The provisions of this Section 17 are in addition to the
survivorship provisions of any other Section of this Agreement.
18. REPRESENTATIONS AND WARRANTIES. Each Party represents and
warrants that he or she or it is fully authorized and empowered to enter into
this Agreement and that the performance of his or her or its obligations under
this Agreement will not violate any agreement between that Party and any other
Person.
19. ENTIRE AGREEMENT. This Agreement and the Indemnification
Agreement and any documents contemporaneous with this Agreement expressly
setting forth an agreement between the parties and expressly identified in this
Agreement contain the entire agreement between the Parties concerning the
subject matter hereof and supersede all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, express or
implied, between the Parties with respect hereto. No representations,
inducements, promises or agreements not embodied herein shall be of any force or
effect.
20. ASSIGNABILITY; BINDING NATURE. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors,
heirs and assigns; provided, however, that no rights or obligations of the
Executive under this Agreement may be assigned or transferred by the Executive,
other than rights to compensation and benefits hereunder, which may be
transferred only by will or operation of law and subject to the limitations of
this Agreement.
21. AMENDMENT OR WAIVER. No provision in this Agreement may be
amended or waived unless such amendment or waiver is agreed to in writing and
signed by both Parties. No waiver by one Party of any breach by the other Party
of any condition or provision of this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. No failure of the Company to
exercise any power given it hereunder or to insist upon strict compliance by the
Executive with any obligation hereunder, and no custom or practice at variance
with the terms hereof, shall constitute a waiver of the right of the Company to
demand strict compliance with the terms hereof.
22. SEVERABILITY. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law. Without limiting the foregoing, if any portion of Section 10
is held to be unenforceable, the maximum enforceable restriction of time, scope
of activities and geographic area will be substituted for any such restrictions
held unenforceable.
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23. GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Nevada without
reference to the principles of conflict of laws thereof. In the event of any
dispute or controversy arising out of or relating to this Agreement that is
brought to a court, the Parties mutually and irrevocably consent to, and waive
any objection to, the exclusive jurisdiction of any federal or state court of
competent jurisdiction sitting in the State of Nevada, to resolve such dispute
or controversy; provided, however, that nothing in this Section 23 shall affect
the Parties' agreement in Section 12 hereinabove that arbitration under Section
12 shall apply to all disputes under this Agreement other than as provided in
Section 12.4.
24. INDEMNIFICATION. To the extent not otherwise required by law or
the Indemnification Agreement, the Company will consider in good faith, and
consistent with the Company's past practices, requests by the Executive for
indemnification against claims arising from the Executive's conduct in the
course and scope of the Executive's employment under this Agreement and for
advancement of expenses reasonably incurred in defending against such claims.
25. HEADINGS. The headings of the Sections and Subsections contained
in this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same Agreement with the same effect as if all Parties had signed the
same signature page. Any signature page of this Agreement may be detached from
any counterpart of this Agreement and reattached to any other counterpart of
this Agreement identical in form hereto but having attached to it one or more
additional signature pages.
27. ACKNOWLEDGMENT. The Executive represents and acknowledges the
following:
(a) he or she has carefully read this Agreement in its
entirety;
(b) he or she understands the terms and conditions
contained herein;
(c) he or she has had the opportunity to review this
Agreement with legal counsel of his or her own choosing, and has
done so, and has not relied on any statements made by the Company
or its legal counsel as to the meaning of any term or condition
contained herein or in deciding whether to enter into this
Agreement; and
(d) he or she is entering into this Agreement knowingly
and voluntarily.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
AMERISTAR CASINOS, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Senior Vice President of Finance
--------------------------------
EMPLOYEE:
/s/ XXXXXX X. XXXXXXXX
---------------------------------------
XXXXXX X. XXXXXXXX
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EXHIBIT A
SEPARATION AGREEMENT
AND
GENERAL AND SPECIAL RELEASE
This Separation Agreement and General and Special Release ("Agreement")
is made by and between XXXXXX X. XXXXXXXX (the "Executive") and AMERISTAR
CASINOS, INC., a Nevada corporation ("Company"), with respect to separation
payments to be paid to the Executive conditioned in part on a complete release
by the Executive of any and all claims against the Company and its affiliated
entities, their respective directors, officers, employees, agents, accountants,
attorneys, representatives, successors and assigns.
In consideration of delivery to the Executive of the severance payments
and benefits by the Company conditionally promised by the Company in that
certain Executive Employment Agreement by and between the Executive and the
Company dated as of October 5, 2001 (the "Employment Agreement") and with the
sole exception of those obligations expressly recited herein or to be performed
hereunder and of the Executive's claims to vested interests the Executive may
have in employee benefit plans, stock options or restricted stock as defined
exclusively in written documents, the Executive and the Executive's heirs,
successors and assigns do hereby and forever release and discharge the Company
and its affiliated entities and their past and present directors, officers,
employees, agents, accountants, attorneys, representatives, successors and
assigns from any and all causes of action, actions, judgments, liens,
indebtedness, damages, losses, claims, liabilities and demands of whatsoever
kind and character in any manner whatsoever arising prior to the date of this
Agreement, including but not limited to any claim for breach of contract, breach
of implied covenant, breach of oral or written promise, allegedly unpaid
compensation, wrongful termination, infliction of emotional distress,
defamation, interference with contract relations or prospective economic
advantage, negligence, misrepresentation or employment discrimination, and
including without limitation, to the extent permitted by law, alleged violations
of Title VII of the Civil Rights Act of 1964 prohibiting discrimination based on
race, color, religion, sex or national origin, the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967 (including the Older Workers
Benefit Protection Act) prohibiting discrimination based on age over 40, the
Americans With Disabilities Act prohibiting discrimination based on disability,
the Fair Labor Standards Act, the Equal Pay Act, the Family and Medical Leave
Act, the Employee Retirement Income Security Act of 1974, and any other federal,
state or local labor or fair employment law under which a claim might be brought
were it not released here, all as amended from time to time.
The Executive assumes the risk of any mistake of fact and of any facts
which are unknown, and thereby waives any and all claims that this release does
not extend to claims which the Executive does not know or suspect to exist in
his or her favor at the time of executing this release, which if known by the
Executive must or might have materially affected his or her settlement with the
Company.
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The Executive and the Company represent, understand and expressly agree
that this Agreement sets forth all of the agreements, covenants and
understandings of the parties, superseding all other prior and contemporaneous
oral and written agreements excepting only those written agreements set forth or
referred to in the Employment Agreement between the Executive and the Company.
The Executive and the Company agree that no other agreements or covenants will
be binding upon the parties unless set forth in a writing signed by the parties
or their authorized representatives, and that each of the parties is authorized
to make the representations and agreements herein set forth by or on behalf of
each such party. The Executive and the Company each affirms that no promises
have been made to or by either to the other except as set forth in the
Employment Agreement or this Agreement.
The Executive and the Company agree that any and all disputes,
controversies or claims arising out of this Agreement or concerning his or her
employment or its termination shall be determined exclusively by final and
binding arbitration pursuant to the terms of the Employment Agreement.
The Executive acknowledges that he or she has had twenty-one (21) days
within which to consider this Agreement if he or she has wished to do so, that
he or she has seven (7) days from the date of his or her acceptance of this
Agreement within which to revoke his or her acceptance, that he or she has been
and hereby is advised by the Company to consult with counsel concerning this
Agreement and has had an opportunity to do so, and that no payments will be made
to the Executive by the Company hereunder until after such seven (7) days and
until the Executive shall have provided thereafter reasonable assurances on
request that he or she has not revoked his or her acceptance of this Agreement
within such seven (7) days. The Executive affirms that he or she enters into
this Agreement freely and voluntarily.
Dated _____________, _____ at ____________________________, ____________
________________________________________
the Executive
Dated _____________, _____ at ____________________________, ____________
AMERISTAR CASINOS, INC.
By _____________________________________
Its ____________________________________
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