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EXHIBIT 10.2
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (this "Agreement") is hereby
entered into by and between X. Xxxxx Opel, an individual (the "Executive"), and
Venture Catalyst Incorporated, formerly known as Inland Entertainment
Corporation, a Utah corporation (the "Company").
RECITALS
WHEREAS, the Executive has been employed by the Company on an at-will
basis since May 1, 1995, most recently serving as Executive Vice President and a
Director of the Company; and
WHEREAS, the Executive and the Company have determined that it is in
their mutual best interests that the Executive resign from his positions as
Executive Vice President and a Director of the Company, and all other positions
that he holds with the Company and any other subsidiary or related entity of the
Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereby agree as follows:
1. Unconditional Resignation. The Executive hereby voluntarily,
unconditionally and irrevocably resigns as an employee, an officer and a
director (including a member of any committees of the Board of Directors) of the
Company and any other subsidiary or related entity of the Company, effective as
of February 25, 2000 (the "Resignation Date"). The Company hereby accepts such
resignation and the Executive is relieved of all duties effective as of the
Resignation Date. Concurrently with the execution of this Agreement, the
Executive shall execute a separate letter of resignation in a form acceptable to
the Company.
2. Compensation, Expenses, Vacation Pay and Other Benefits Through
the Resignation Date. The Executive acknowledges and agrees that the Company has
paid the Executive his current base salary through the Resignation Date and the
Executive does not have any accrued or unused vacation pay earned through the
Resignation Date. The Executive acknowledges and agrees that the payment of the
foregoing salary through the Resignation Date constitutes full payment of any
and all monies (including, but not limited to, any bonus amounts) that he earned
or that is owed to him during his employment by the Company through the
Resignation Date.
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3. Company Property. With the exception of the computer equipment
referenced in Section 6(b) herein, on the Resignation Date, the Executive shall
return to the Company all property of the Company in the Executive's possession.
In addition, (i) by no later than March 1, 2000, the Executive shall relinquish
his membership in the Del Mar Country Club, and (ii) the Executive's
automobile-related benefits shall be discontinued as of the Resignation Date.
4. COBRA Benefits. The Executive (or any of his eligible dependents)
may elect to continue to participate in any of the Company's group health
insurance plans pursuant to COBRA, 29 U.S.C. Section 1161, et seq. Nothing in
this Agreement is intended to alter the terms of COBRA in any way and those
terms shall remain applicable in all respects.
5. Continuation of Benefits After the Resignation Date. Except as
expressly provided in this Agreement or in the plan documents governing the
Company's employee benefit plans, as of the Resignation Date, the Executive will
no longer be eligible for, receive, accrue, or participate in any other benefits
or benefit plans provided by the Company, including, without limitation,
medical, dental and life insurance benefits, a car allowance and the Company's
401(k) retirement plan; provided, however, that health care coverage for the
Executive and the Executive's dependents may be continued under COBRA for as
long as the Executive is eligible for such coverage and so long as the Executive
pays the required premiums.
6. Severance Benefits After the Resignation Date. Notwithstanding
his voluntary resignation, the Company shall provide, as severance benefits, the
following benefits to the Executive after the expiration of the date that the
period of revocation under Section 11(c) of this Agreement has lapsed without
exercise and after the Executive's spouse executes the Spousal Consent in the
form presented to the Executive by the Company (the "Settlement Date").
(a) Health Insurance Premiums. If the Executive (or any of his
eligible dependents) elects to continue to participate in any of the Company's
group health insurance plans pursuant to COBRA, 29 U.S.C. Section 1161, et seq.,
the Company shall reimburse the Executive, following the Settlement Date, for
the premiums paid by the Executive for such COBRA coverage commencing on the
Resignation Date through April 30, 2000.
(b) Computer Equipment. The Company shall allow the Executive to
continue to use, at the Executive's home, the computer equipment consisting of a
Compaq computer system and a Hewlett-Packard printer.
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(c) Option Agreements Amendments. Each stock option agreement
heretofore granted to the Executive under the Company's stock-based compensation
plans shall, to the extent legally permissible, be amended to provide (i) that
the options granted thereunder shall continue to be exercisable and shall
continue to vest according to the vesting schedules set forth therein as though
the Executive was still employed by the Company during the time that the
Executive is performing consulting services for the Company pursuant to the
Consulting Agreement (as defined herein), and (ii) for a period to exercise all
vested options (including options which will have vested on or before the
termination of the Executive's engagement as a consultant to the Company) until
and including three months after the termination of the Consulting Agreement.
The payments and benefits set forth in this Section 6 are, from and
after the Settlement Date, the Executive's only right to compensation from the
Company and any of its parents, direct or indirect subsidiaries, divisions or
related entities (collectively referred to herein as the "Company and its
Related Entities").
7. Consulting Agreement. The Company and the Executive shall enter
into a consulting agreement dated as of the date hereof (the "Consulting
Agreement"), whereby the Company shall retain the Executive as a consultant upon
the terms and conditions set forth therein.
8. General Release by the Executive. The Executive, for himself and
his heirs, executors, administrators, assigns, affiliates, successors and agents
(collectively, the "Executive's Affiliates") hereby fully and without limitation
releases and forever discharges the Company and its Related Entities and its and
their agents, representatives, shareholders, owners, officers, directors,
employees, consultants, attorneys, auditors, accountants, investigators,
affiliates, successors and assigns (collectively with the Company, the
"Releasees"), both individually and collectively, from any and all rights,
claims, demands, liabilities, actions, causes of action, damages, losses, costs,
expenses and compensation, of whatever nature whatsoever, known or unknown,
fixed or contingent ("Claims"), which the Executive or any of the Executive's
Affiliates has or may have or may claim to have against the Releasees by reason
of any matter, cause, or thing whatsoever, from the beginning of time to the
date hereof, including, without limiting the generality of the foregoing, any
Claims arising out of, based upon, or relating to the recruitment, hire,
employment, relocation, remuneration, investigation, or termination of the
Executive by any of the Releasees, the Executive's tenure as a Director of any
of the Releasees, any agreement or compensation arrangement between the
Executive and any of the Releasees, or any act or occurrence in connection with
any actual, existing, proposed, prospective or claimed ownership interest of any
nature of the Executive or the Executive's affiliates in equity capital or
rights in equity capital or other securities of any of the Releasees to the
maximum extent permitted by law.
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The Executive specifically and expressly releases any Claims arising out
of or based on the California Fair Employment and Housing Act, as amended; Title
VII of the Civil Rights Act of 1964, as amended; the Americans With Disabilities
Act; the National Labor Relations Act, as amended; the Equal Pay Act; ERISA; any
provision of the California Labor Code; California common law of fraud,
misrepresentation, negligence, defamation, infliction of emotional distress, any
breach of contract or covenant claim, any tort claim, any violation of public
policy or wrongful termination; state or Federal wage and hour laws; or any
other state or Federal law, rule, or regulation dealing with the employment
relationship.
The Executive is aware of California Civil Code Section 1542, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
With full awareness and understanding of the above provision, the Executive
hereby waives any rights he may have under California Civil Code Section 1542.
9. Release of Federal Age Discrimination Claims by the Executive.
The Executive hereby knowingly and voluntarily waives and releases all rights
and claims, known or unknown, arising under the Age Discrimination In Employment
Act of 1967, as amended, which he might otherwise have had against the Company
or any of the Releasees regarding any actions which occurred prior to the
effective date of this Agreement.
10. Breach of Release. The Executive agrees that if he hereafter
commences, joins in, or in any manner seeks relief through any suit arising out
of, based upon, or relating to any of the Claims released by the Executive
hereunder, or in any manner asserts against any of the Releasees any of the
Claims released by the Executive hereunder, the Executive shall pay to such
Releasee(s), as the case may be, in addition to any other damages caused to such
Releasee, as the case may be, all attorneys' fees incurred in defending or
otherwise responding to said suit or claim.
11. Rights Under the Older Workers Benefit Protection Act. In
accordance with the Older Workers Benefit Protection Act of 1990, the Executive
is aware of the following:
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(a) The Executive has the right to consult with an attorney before
signing this Agreement and is hereby advised by the Company to do so;
(b) The Executive has twenty-one (21) days from February 25, 2000,
to consider this Agreement; and
(c) The Executive has seven (7) days after signing this Agreement
to revoke Sections 6 and 9 of this Agreement (which must be revoked in their
entirety and as a group), and such Sections of this Agreement (as a group) will
not be effective until that revocation period has expired without exercise. The
Executive agrees that in order to exercise his right to revoke this Agreement
within such seven (7) day period, he must do so in a signed writing delivered to
the Company's Chief Executive Officer before the close of business on the
seventh calendar day after the Resignation Date. If the Executive does not
revoke the above-referenced Sections of this Agreement, the General Releases set
forth in Section 8 herein shall have as their new effective date the date that
the period of revocation under Section 11(c) of this Agreement has lapsed.
12. Confidentiality of Agreement. The Executive acknowledges that
this Agreement and certain related agreements may have to be disclosed in the
Company's reports filed with the U.S. Securities and Exchange Commission. Except
as may be required by law, neither the Executive, his attorney, nor any person
acting by, through, under or in concert with them, shall disclose any of the
terms of or facts relating to this Agreement (other than to state that the
Company has filed this Agreement and/or agreements related thereto as public
documents) or the negotiation thereof to any individual or entity, except for
disclosures made among the Executive, his attorney, spouse, children or tax
advisors. The Executive further agrees that under no circumstances will he
induce, encourage, solicit or assist any other person or entity to file or
pursue any proceeding of any kind against the Releasees.
13. Proprietary Information. The Executive acknowledges that certain
information, observations, and data obtained by him during the course of or
related to his employment with the Company and its Related Entities (including,
without limitation, certain financial information, shareholder information,
product design information, business plans, marketing plans or proposals,
personnel information, customer lists and other customer information) are the
sole property of the Company and its Related Entities and constitute trade
secrets of the Company and its Related Entities. The Executive agrees to
promptly return all files, customer lists, financial information and other
property of the Company and its Related Entities that are in the Executive's
possession or control without making copies thereof. The Executive further
agrees that he will not disclose to any person or use any such information,
observations or data without the written consent of the Company's Board of
Directors. If the Executive is served with a deposition subpoena or other legal
process calling for the disclosure of such information, or if he is contacted by
any third person requesting such information, he will immediately notify the
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Company's Chief Financial Officer and will fully cooperate with the Company in
minimizing the disclosure thereof.
14. Unfair Competition. In addition to the provisions under the
Consulting Agreement in its form on this February 25, 2000 or as amended and
restated:
(a) The Executive agrees not to (whether as an employee, director,
owner, stockholder, consultant, limited or general partner, or otherwise), for
himself or for any other person or entity, engage in any unfair competition with
the Company and its Related Entities.
(b) The Executive also covenants and agrees not to intentionally
interfere with, disrupt, or attempt to disrupt, the relationship, contractual or
otherwise, between the Company, any of its Related Entities and any of its/their
customers, employees or suppliers, including, but not limited to, the Barona
Group of Capitan Grande Band of Mission Indians, the Barona Casino and any of
the Company's current or past Indian gaming clients, as of the Resignation Date.
In addition, and notwithstanding anything to the contrary herein, the Executive
also covenants and agrees that his association with any Indian gaming operation,
enterprise or business, including, but not limited to, providing of consulting
services thereto, are expressly subject to the terms and conditions of the
Consulting Agreement.
(c) The Company and the Executive agree that neither this
Agreement nor the Consulting Agreement shall be interpreted or construed to
alter or effect in any material manner the contractual relationship among the
Company, the Barona Group of Capitan Grande Band of Mission Indians and the
Barona Casino.
(d) The Executive acknowledges that any unfair competition or
unauthorized use of trade secret or proprietary information belonging to the
Company and its Related Entities, or any violation of Sections 12 through 14 of
this Agreement, will result in irreparable harm to the Company and/or its
Related Entities and will give rise to an immediate action by the Company and
its Related Entities for injunctive relief.
15. Cooperation Clause.
(a) The Executive agrees to cooperate with the Company and its
Related Entities and its or their counsel (i) in any investigations (including
internal investigations) and audits of the Company's or any of its Related
Entities' management's current and past conduct and business and accounting
practices and (ii) in the Company's defense of, or other participation in, any
administrative, judicial, or other proceeding arising from any charge, complaint
or other action which has been or may be filed relating to the period during
which the Executive was engaged in employment with the Company and/or its
Related Entities. Except as required by law or authorized in advance by the
Company's Board of Directors, the Executive will not communicate, directly or
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indirectly, with any third party concerning the management or governance of the
Company and/or its Related Entities, the operations of the Company and/or its
Related Entities, the legal positions taken by the Company and/or its Related
Entities, or the financial status of the Company and/or its Related Entities.
The Executive shall direct inquiries from third parties on these issues to the
Company. The Executive acknowledges that any violation of this Section 15 will
result in irreparable harm to the Company and its Related Entities and will give
rise to an immediate action by the Company and/or its Related Entities for
injunctive relief.
(b) The Executive will not seek or accept employment by the
Company or its Related Entities at any time and if he does so, his application
need not be considered.
16. Non-disparagement; Employment Reference. The Executive agrees not
to disparage or otherwise publish or communicate derogatory statements or
opinions about the Company and/or its Related Entities, its/their respective
management, products and services to any third party for a period of three (3)
years after the Resignation Date. It shall not be a breach of this Section 16
for the Executive to testify truthfully in any judicial or administrative
proceeding, or to make factually accurate statements in legal or public filings.
If any prospective employers contact the Human Resources Director of the Company
concerning the Executive, they will be told that the Executive was employed by
the Company from May 1, 1995 until he voluntarily resigned as of the Resignation
Date.
17. Remedies for Breach. Notwithstanding anything to the contrary
herein, if the Executive breaches his obligations under this Agreement, in
addition to whatever other rights the Company and/or its Related Entities may
have, the Executive shall forfeit his right to receive any further payments or
benefits under this Agreement.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without giving effect to
principles of conflict of laws. The Company and the Executive each hereby agrees
that all actions or proceedings arising directly or indirectly hereunder,
whether instituted by the Executive or the Company, shall be litigated in courts
having situs within the State of California, County of San Diego and the
Executive and the Company each hereby expressly consents to the jurisdiction of
any local, state or Federal court located within said state and county, and
consent that any service of process in such action or proceeding may be made by
personal service upon the Executive or the Company wherever the Executive or the
Company may be located, respectively, or by certified or registered mail
directed to the Executive or the Company at his/its last known address. The
Executive and the Company each hereby waives trial by jury, any objection based
on forum non conveniens, and any objection to venue of any action instituted
hereunder.
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19. Attorneys' Fees. In any action, litigation or proceeding between
the parties arising out of or in relation to this Agreement, each party shall
bear its own costs and expenses, including reasonable attorneys' fees.
20. Non-Admission of Liability. The Executive and the Company each
understands and agrees that neither the payment of any sum of money nor the
execution of this Agreement by the parties will constitute or be construed as an
admission of any liability whatsoever by any party.
21. Withholding Taxes; Tax Reporting. The Company may, if required in
its reasonable judgment, withhold from any amounts payable under this Agreement
all such Federal, state, city and other taxes, and may file with appropriate
governmental authorities all such information returns or other reports with
respect to the tax consequences attendant to any amounts payable under this
Agreement, as may, in its reasonable judgment, be required by law.
22. Severability. If any one or more of the provisions contained
herein (or parts thereof), or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity and enforceability of any such provision in every other respect and of
the remaining provisions hereof will not be in any way impaired or affected, it
being intended that all of the rights and privileges shall be enforceable to the
fullest extent permitted by law.
23. Entire Agreement. This Agreement represents the sole and entire
agreement among the parties and, except as expressly stated herein, supersedes
all prior agreements, negotiations and discussions between the Executive and the
Company with respect to the subject matters contained herein. 24. Waiver. No
waiver by one party hereto at any time of any breach of, or compliance with, any
condition or provision of this Agreement to be performed by the other party
hereto may be deemed a waiver of similar or dissimilar provisions or conditions
at the same time or at any prior or subsequent time.
25. Amendment. This Agreement may be modified or amended only if such
modification or amendment is agreed to in writing and signed by duly authorized
representatives of the parties hereto, which writing expressly states the intent
of the parties to modify this Agreement.
26. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original as against any
party that has signed it, but all of which together will constitute one and the
same instrument.
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27. Assignment. This Agreement inures to the benefit of and is
binding upon the Company and its successors and assigns, but the Executive's
rights under this Agreement are not assignable.
28. Notice. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) if personally delivered; (b) if sent by telecopy or facsimile; or
(c) if mailed by overnight or by first class, certified or registered mail,
postage prepaid, return receipt requested, and properly addressed as follows:
If to the Executive, to:
X. Xxxxx Opel
00000 Xxxxxxxx Xxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
If to the Company, to:
Venture Catalyst Incorporated
16868 Xxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided above. Notice will conclusively be deemed to have been given
when personally delivered (including, but not limited to, by messenger or
courier); or if given by mail, on the date of delivery, if given by Federal
Express or other similar overnight service or on the third day after being sent
by first class, certified or registered mail; or if given by telecopy or
facsimile machine, when confirmation of transmission is indicated by the
sender's machine. Notices, requests, demands and other communications delivered
to legal counsel of any party hereto, whether or not such counsel shall consist
of in-house or outside counsel, shall not constitute duly given notice to any
party hereto.
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29. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and
fully understand all of its terms; that they have conferred with their
attorneys, or have knowingly and voluntarily chosen not to confer with their
attorneys about this Agreement; that they have executed this Agreement without
coercion or duress of any kind; and that they understand any rights that they
have or may have and sign this Agreement with full knowledge of any such rights.
(b) The language in all parts of this Agreement must be in all
cases construed simply according to its fair meaning and not strictly for or
against any party. Whenever the context requires, all words used in the singular
must be construed to have been used in the plural, and vice versa, and each
gender must include any other gender. The captions of the Sections of this
Agreement are for convenience only and must not affect the construction or
interpretation of any of the provision herein.
(c) Each provision of this Agreement to be performed by a party
hereto is both a covenant and condition, and is a material consideration for the
other party's performance hereunder, and any breach thereof by the party will be
a material default hereunder. All rights, remedies, undertakings, obligations,
options, covenants, conditions and agreements contained in this Agreement are
cumulative and no one of them is exclusive of any other. Time is of the essence
in the performance of this Agreement.
(d) Each party acknowledges that no representation, statement or
promise made by the other party, or by the agent or attorney of such other
party, has been relied on by him or it in entering into this Agreement.
(e) Each party understands that the facts with respect to which
this Agreement is entered into may be materially different from those the
parties now believe to be true. Each party accepts and assumes this risk and
agrees that this Agreement and the release in it shall remain in full force and
effect, and legally binding, notwithstanding the discovery or existence of any
additional or different facts, or of any claims with respect to those facts.
(f) Unless expressly set forth otherwise, all references herein to
a "day" are deemed to be a reference to a calendar day. All references to
"business day" mean any day of the year other than a Saturday, Sunday or a
public or bank holiday in San Diego, California. Unless expressly stated
otherwise, cross-references herein refer to provisions within this Agreement and
are not references to the overall transaction or to any other document.
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(g) Each party to this Agreement will cooperate fully in the
execution of any and all other documents and in the completion of any additional
actions that may be necessary or appropriate to give full force and effect to
the terms and intent of this Agreement.
30. Approval of Board of Directors. This Agreement was approved by
the Compensation Committee of the Company's Board of Directors at a special
meeting held on February 25, 2000.
THE EXECUTIVE AND THE COMPANY EACH ACKNOWLEDGES THAT HE/IT HAS READ THIS
AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT. THE EXECUTIVE
ACKNOWLEDGES AND UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates indicated below.
VENTURE CATALYST INCORPORATED,
a Utah corporation
Dated: February 25, 2000 By: /S/ L. XXXXXX XXXXX, XX
-----------------------------------
L. Xxxxxx Xxxxx, XX
Chairman of the Board and Chief
Executive Officer
EXECUTIVE
Dated: February 25, 2000 By: /S/ X. XXXXX OPEL
-------------------------------------
X. Xxxxx Opel
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SPOUSAL CONSENT
I, Xxxx Opel, have read the Settlement and Release Agreement (the
"Agreement") entered into by and between Venture Catalyst Incorporated and X.
Xxxxx Opel, understand the contents of the Agreement, and do hereby consent to
the Agreement. I have been advised to consult with counsel of my choosing in
connection with this Spousal Consent and have been given ample opportunity to do
so. If I have not consulted with counsel in connection with this Spousal
Consent, I have knowingly and willingly elected not to do so.
Spouse
Dated: February 25, 2000 /S/ XXXX OPEL
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Xxxx Opel
