Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL RELEASE (this "Separation
Agreement"), made as of March 4, 2005, is entered into by and among POSTER
FINANCIAL GROUP, INC., a Nevada corporation (the "Company"), GNLV, CORP., GNL,
CORP., GOLDEN NUGGET EXPERIENCE LLC and XXXXXXX WOODEN ("Wooden").
W I T N E S S E T H :
WHEREAS, Wooden has been employed by the Company as its Chief
Operating Officer pursuant to the Employment Agreement between the Company and
Wooden dated as of October 29, 2003 (the "Employment Agreement");
WHEREAS, under the terms of a Stock Purchase Agreement dated as of
February 3, 2005 by and among PB Gaming, Inc., the Company, LSRI Holdings, Inc.
and Xxxxxx'x Restaurants, Inc. (the "Purchase Agreement"), PB Gaming, Inc., the
sole stockholder of the Company, will sell all of the shares of the Company to
LSRI Holdings, Inc., a wholly owned subsidiary of Xxxxxx'x Restaurants, Inc.;
WHEREAS, subject to the terms and conditions of this Separation
Agreement, Wooden has resigned, without Good Reason (as defined in the
Employment Agreement) from all positions with the Company, GNLV, CORP., GNL,
CORP., Golden Nugget Experience LLC and The Fremont Street Experience Limited
Liability Company (collectively, the "Employer Group") effective as of March 4,
2005 (the "Termination Date"); and
WHEREAS, Wooden and the Employer Group desire to settle fully and
finally any differences, rights and duties arising between them, including, but
in no way limited to, any differences, rights, and duties that have arisen or
might arise out of or are in any way related to the Employment Agreement,
Wooden's employment and positions with the Employer Group, and the conclusion
of that employment and those positions, and Wooden's memberships on the Boards
of Directors (or similar governing bodies) of the Employer Group, and the
conclusion of those memberships;
NOW, THEREFORE, in consideration of the covenants, releases and mutual
promises herein contained, and intending to be legally bound hereby, it is
agreed as follows:
1. Termination of Employment. Wooden hereby irrevocably tenders, and
the Employer Group accepts, Wooden's resignation, in each case effective as of
the Termination Date, from: (i) Wooden's employment with the Company, and (ii)
Wooden's positions as a member of the Boards of Directors (or similar governing
bodies) of the Employer Group and any other positions as an officer, director
or manager of the Employer Group he may hold. Wooden agrees to execute such
documents and take such actions as may be necessary or desirable to further
evidence this provision.
2. Payments and Benefits.
(a) Within five (5) business days following the Effective Date of
this Separation Agreement (as defined in Paragraph 9 below), the Company shall
pay, or cause to be paid, to Wooden an amount equal to $1,250,000.00, less all
amounts required or authorized to be withheld by law (the "Separation
Payment").
(b) Wooden's eligibility to participate in the Company's benefit
plans and programs will terminate as of the Termination Date. Wooden shall be
given notice under separate cover of his right to elect continued coverage
pursuant to the provisions of the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended ("COBRA"), at his own expense.
(c) Wooden understands and agrees that aside from the payments
expressly set forth in this Paragraphs 2 and 3(a) of this Separation Agreement,
and reimbursement for any expenses properly incurred in accordance with
applicable policies of the Employer Group, Wooden is not entitled to receive
any other payments or benefits from the Company or any other member of the
Employer Group.
3. Release.
(a) Wooden, on behalf of himself and his heirs, executors,
administrators, successors and assigns, hereby knowingly and voluntarily
releases and forever discharges each member of the Employer Group, PB Gaming,
Inc., LSRI Holdings, Inc. and Xxxxxx'x Restaurants, Inc., and each of their
respective parents, subsidiaries and affiliates, together with each of their
respective present and former officers, directors, shareholders, employees,
agents, representatives, attorneys, trustees, and each of their predecessors,
heirs, executors, administrators, successors and assigns (collectively, the
"Releasees") from any and all claims, charges, complaints, promises,
agreements, controversies, demands, causes of action, rights, obligations,
costs, losses, expenses, attorneys' fees, damages and liabilities of any nature
whatsoever, known or unknown, suspected or unsuspected, matured or unmatured,
both in law and equity ("Claims") which Wooden ever had, now has or at any time
hereafter may have against the Releasees: (i) by reason of any act, omission,
event, occurrence or nonoccurrence whatsoever from the beginning of time to the
date of this Separation Agreement or (ii) arising out of or relating to the
Employment Agreement. Subject to the preceding sentence, this Release includes,
but is not limited to, any Claims relating to Wooden's employment relationship
and positions held with the Employer Group, or the terminations thereof; any
Claims arising under any statute or regulation, including the Age
Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the Family and Medical Leave Act of 1993,
the Americans with Disabilities Act of 1990, the Employee Retirement Income
Security Act of 1974, the Nevada Fair Employment Practices Act, Chapter 608 of
the Nevada Revised Statutes, each as amended, or any other federal, state or
local law, regulation, ordinance or common law; any Claims under any policy,
agreement, understanding or promise, written or oral, formal or informal,
between any of the Releasees and Wooden, including without limitation, the
Employment Agreement; and all Claims for alleged tortious, defamatory or
fraudulent conduct; provided, however, that nothing in this Release shall
affect (1) any vested employee benefits to which Wooden may be entitled under
the Company 401(k) plan or Deferred Compensation Plan; or (2) Wooden's rights
under this Separation Agreement.
(b) Wooden acknowledges and agrees that the Employer Group has
fully satisfied any and all obligations owed to Wooden arising out of Wooden's
employment and positions held with the Employer Group, and no further sums are
owed to Wooden by the Employer Group or by any of the other Releasees, except
as expressly provided in this Separation Agreement. Wooden represents that he
has not commenced or joined in any claim, charge or action against any member
of the Employer Group or any of the other Releasees, arising out of or relating
in any way to Wooden's employment or positions held with the Employer Group, or
the terminations thereof, or any other matter released pursuant to Paragraph
3(a) above. Wooden further covenants and agrees that neither he nor his heirs,
executors, administrators, successors or assigns shall seek or be entitled to
any personal recovery in any proceeding of any nature whatsoever against any
member of the Employer Group or the other Releasees arising out of any of the
matters released in Paragraph 3(a).
4. Restrictive Covenants.
(a) Noncompetition.
(i) Wooden acknowledges that, in the course of Wooden's
employment with and positions held with the Employer Group, Wooden formed
relationships and became acquainted with certain confidential and proprietary
information as further described in Paragraph 4(c) below. Wooden further
acknowledges that such relationships and information are and will remain
valuable to the Employer Group and that the restrictions on future employment,
if any, are reasonably necessary in order for the Employer Group to remain
competitive in the gaming industry. In recognition of the Employer Group's
heightened need for protection from abuse of relationships formed or
information garnered during Wooden's employment and positions held with the
Employer Group, Wooden will not, for a period commencing on March 4, 2005 and
continuing until the first to occur of (A) the one year anniversary of the
Closing Date (as defined in the Purchase Agreement), or (B) October 31, 2006
(the "Noncompete Period"), directly or indirectly, be employed by, provide
consultation or other services to, engage or participate in, provide advice,
information or assistance to, fund or invest in, or otherwise be connected or
associated in any way or manner with, any firm, person, corporation or other
entity which is either directly, indirectly or through an affiliated company or
entity, engaged in gaming or proposes to engage in gaming in the State of
Nevada, or in or within a 150 mile radius of any other jurisdiction in which
any member of the Employer Group is engaged in gaming or proposes to engage in
gaming during the Noncompete Period.
(ii) Wooden acknowledges and agrees that in the event of a
breach of the restrictions and obligations contained in Paragraph 4(a)(i) of
this Separation Agreement by Wooden, in addition and without prejudice to any
other remedies any member of the Employer Group may have, Wooden will
immediately become liable to the Company for the repayment of a pro rata
portion of the Separation Payment. Such pro rata portion shall be in an amount
equal to the Separation Payment multiplied by a fraction, the numerator of
which is the number of days between the date of Wooden's breach of Paragraph
4(a)(i) and the last day of the Noncompete Period and the denominator of which
is the number of days between March 4, 2005 and the last day of the Noncompete
Period; provided, however, that if the Closing Date has not occurred prior to
Wooden's breach of Paragraph 4(a)(i), then, for purposes of this Paragraph
4(a)(ii), the last day of the Noncompete Period shall be deemed to be October
31, 2006.
(b) Nonsolicitation. Wooden further agrees that for the period
commencing on March 4, 2005 and continuing until February 28, 2007, Wooden will
not, directly or indirectly:
(i) Make known to any third party the names and addresses of any
of the customers of any member of the Employer Group, or any other information
pertaining to those customers;
(ii) Call on, solicit, induce to leave and/or take away, or
attempt to call on, solicit, induce to leave and/or take away, any of the
customers of any member of the Employer Group, either for Wooden's own account
or for any third party;
(iii) Call on, solicit and/or take away, any potential or
prospective customer of any member of the Employer Group, on whom Wooden called
or with whom Wooden became acquainted during his employment and positions held
with any member of the Employer Group, either for Wooden's own account or for
any third party; or
(iv) Approach or solicit any employee or independent contractor
of any member of the Employer Group with a view towards enticing such person to
leave the employ or service of any member of the Employer Group, or hire or
contract with any person who is currently, or who during the prior six (6)
month period was, an employee or independent contractor of any member of the
Employer Group, without the prior written consent of the Employer Group, such
consent to be within the Employer Group's sole and absolute discretion.
(c) Confidentiality. Wooden covenants and agrees that Wooden
shall not at any time hereafter, without the Employer Group's prior written
consent, such consent to be within the Employer Group's sole and absolute
discretion, disclose or make known to any person or entity outside of the
Employer Group any Trade Secret (as defined below), or proprietary or other
confidential information concerning any member of the Employer Group, including
without limitation, each member of the Employer Group's customers and its
casino, hotel and marketing practices, procedures, management policies or any
other information regarding any member of the Employer Group which is not
already and generally known to the public through no wrongful act of Wooden or
any other party. Wooden covenants and agrees that Wooden shall not at any time
hereafter, without the Employer Group's prior written consent, utilize any such
Trade Secrets or proprietary or confidential information in any way. Not by way
of limitation but by way of illustration, Wooden agrees that such Trade Secrets
and proprietary or confidential information specifically include, but are not
limited to, those documents and reports set forth on Exhibit A to this
Separation Agreement. For purposes of this Paragraph 4, Trade Secrets is
defined as information (including, but not limited to, all information,
materials or terms included within the Nevada Revised Statutes), including a
formula, pattern, compilation, program, device, method, know-how, technique or
process, that derives economic value, present or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who may or could obtain any economic value from its disclosure or
use.
(d) Third Party Information. Wooden acknowledges that the
members of the Employer Group have received from third parties their
confidential or proprietary information subject to a duty to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Wooden will hold all such confidential or proprietary information in
the strictest confidence and will not disclose it to any person or entity.
(e) Property of the Employer Group. Wooden hereby confirms that
Trade Secrets and proprietary or confidential information and all information
concerning customers who utilize the goods, services or facilities of any hotel
and/or casino owned, operated or managed by each member of the Employer Group
constitute each member of the Employer Group's exclusive property (regardless
of whether Wooden possessed or claims to have possessed such information prior
to the date hereof). Wooden agrees that upon termination of employment, Wooden
shall promptly return to each member of the Employer Group all property owned
by each member of the Employer Group including, but not limited to, all
computers, door and file keys and other physical property, as well as all
notes, notebooks, memoranda, computer disks, and any other similar repositories
of information containing or relating in any way to the Trade Secrets or
proprietary or confidential information of each member of the Employer Group,
including but not limited to, the documents referred to in Paragraph 4(c). Such
repositories of information also include but are not limited to any so-called
personal files or other personal data compilations in any form, which in any
manner contain any Trade Secrets or proprietary or confidential information of
any member of the Employer Group.
(f) Notice to the Company. Wooden agrees to notify the Company
immediately of any employers for whom Wooden works or provides services
(whether or not for remuneration to Wooden or a third party) prior to February
28, 2007.
5. Representations. Wooden hereby represents, warrants and
agrees with the Employer Group that:
(a) The covenants and agreements contained in Paragraph 4 above
are reasonable, appropriate and suitable in their geographic scope, duration
and content; a portion of the compensation and consideration to be paid to
Wooden hereunder is in partial consideration for such covenants and agreements;
and Wooden shall not, directly or indirectly, raise any issue of the
reasonableness, appropriateness and suitability of the geographic scope,
duration or content of such covenants and agreements in any proceeding to
enforce such covenants and agreements;
(b) The enforcement of any remedy under this Separation
Agreement will not prevent Wooden from earning a livelihood, because Wooden's
past work history and abilities are such that Wooden can reasonably expect to
find work in other areas and lines of business;
(c) The covenants and agreements stated in Paragraph 4 above are
essential for the Employer Group's reasonable protection; and
(d) The Employer Group has reasonably relied on these covenants
and agreements by Wooden.
Additionally, Wooden agrees that in the event of Wooden's breach or threatened
breach of any covenants and agreements set forth in Paragraph 4 above, any
member of the Employer Group may seek to enforce such covenants and agreements
through any equitable remedy, including specific performance or injunction,
without waiving any claim for damages. In any such event, Wooden waives any
claim that any member of the Employer Group has an adequate remedy at law.
6. Cooperation.
(a) Wooden agrees to be reasonably available to each member of
the Employer Group and to Xxxxxx'x Restaurants, Inc. to answer questions
related to his position and duties as Chief Operating Officer of the Company
and other matters related to the transition of his role with the Company to a
new individual.
(b) Wooden shall furnish any information in his possession to
and fully cooperate with any member of the Employer Group as may be requested
by such member of the Employer Group in connection with any investigations,
proceedings or legal actions in which any member of the Employer Group is or
may become involved. Wooden shall give truthful testimony in any such
investigations, proceedings or legal actions. In addition, Wooden shall not
furnish information to or cooperate with any non-governmental entity (other
than any member of the Employer Group) which is a party to a proceeding or
legal action involving any member of the Employer Group.
7. Legal Process. Nothing contained in this Separation Agreement
shall preclude Wooden from providing truthful testimony or information pursuant
to subpoena, court order or legal process, provided that Wooden shall promptly
provide each member of the Employer Group with written notice of such subpoena,
court order or legal process so that each member of the Employer Group shall
have an opportunity to challenge any disclosure pursuant to such subpoena,
court order or legal process.
8. Consultation with Attorney/Voluntary Agreement. Wooden
understands and agrees that the Company is under no obligation to offer the
payments and benefits provided in this Separation Agreement, including but not
limited to the amounts referred to in Paragraph 2 above, and that Wooden is
under no obligation to consent to this Separation Agreement, including but not
limited to the Release set forth in Paragraph 3 above. Wooden acknowledges and
agrees that (a) the Company has advised Wooden of his right to consult with an
attorney prior to executing this Separation Agreement, (b) Wooden has carefully
read and fully understands all of the provisions of this Separation Agreement,
and (c) Wooden is entering into this Separation Agreement, including the
Release set forth in Paragraph 3 above, knowingly, freely and voluntarily in
exchange for good and valuable consideration.
9. Consideration and Revocation Period.
(a) Wooden acknowledges that he has at least twenty-one (21)
calendar days to consider the terms of this Separation Agreement, although he
may sign it sooner; provided, however, that Wooden agrees he may not sign this
Separation Agreement prior to March 4, 2005.
(b) Wooden will have seven (7) calendar days from the date on
which he signs this Separation Agreement to revoke his consent to the terms of
this Separation Agreement. Such revocation must be in writing and must be
addressed as follows: Poster Financial Group, Inc., 000 Xxxx Xxxxxxx Xxxxxx,
Xxx Xxxxx, Xxxxxx 00000, Attention: Xxxxxxx X. Poster, Chairman and Chief
Executive Officer and Xxxxxx X. Breitling, President, Treasurer and Secretary.
Notice of such revocation must be received within the seven (7) calendar days
referenced above.
(c) Provided that Wooden does not revoke this Separation
Agreement, this Separation Agreement shall become effective on the eighth (8th)
calendar day after the date on which Wooden signs this Separation Agreement
(the "Effective Date").
10. Severability. If any provision hereof is unenforceable,
illegal, or invalid for any reason whatsoever, such fact shall not affect the
remaining provisions hereof, except in the event a law or court decision,
whether on application for declaration, or preliminary injunction or upon final
judgment, declares one or more of the provisions of this Separation Agreement
that impose restrictions on Wooden unenforceable or invalid because of the
geographic scope or time duration of such restriction. In such event, the
Employer Group shall have the option to deem the invalidated restrictions
retroactively modified to provide for the maximum geographic scope and time
duration that would make such provisions enforceable and valid; provided,
however, the Employer Group's exercise of such option shall not affect the
Employer Group's right to seek damages or such additional relief as may be
allowed by law in respect to any breach or threatened breach by Wooden of the
enforceable provisions of this Separation Agreement.
11. No Waiver of Breach or Remedies. No failure or delay on the part
of the Employer Group or Wooden in exercising any right, power or remedy
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
12. Amendment or Modification. No amendment, modification, termination
or waiver of any provision of this Separation Agreement shall be effective
unless the same shall be in writing and signed by an authorized officer of each
member of the Employer Group and Wooden. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
13. Governing Law; Venue. The laws of the State of Nevada shall govern
the validity, construction and interpretation of this Separation Agreement,
without regard to conflict of law principles. Each party irrevocably submits to
the exclusive jurisdiction of the United States District Court for the District
of Nevada or any court of the State of Nevada in the Eighth Judicial District
located in Las Vegas in any action, suit or proceeding arising out of or
relating to this Separation Agreement or any matters contemplated hereby, and
agrees that any such action, suit or proceeding shall be brought only in such
court.
14. Headings. The headings in this Separation Agreement have been
included solely for convenience of reference and shall not be considered in the
interpretation or construction of this Separation Agreement.
15. Assignment. This Separation Agreement is personal to Wooden and
may not be assigned by Wooden.
16. Successors and Assigns. This Separation Agreement may be assigned
by any member of the Employer Group to its successors and shall be binding upon
the successors and assigns of each member of the Employer Group.
17. No Third Party Beneficiaries. This Separation Agreement is not
intended and shall not be construed to confer any rights, benefits, obligations
or remedies hereunder upon any individual or entity, other than Wooden, the
Employer Group and the other Releasees, and their respective permitted
successors and assigns.
18. Prior Agreements. This Separation Agreement sets forth the entire
agreement and understanding between the Employer Group and Wooden and shall
supersede and replace any and all other prior discussions and negotiations as
well as any and all agreements and arrangements that may have been entered into
by and between any member of the Employer Group or any of the other Releasees,
on the one hand, and Wooden, on the other hand, relating to the subject matter
hereof.
19. Counterparts. This Separation Agreement may be executed by
facsimile and in one or more counterparts, each of which shall be deemed to
constitute an original and which together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, Wooden and an authorized officer of each member of
the Employer Group have entered into this Separation Agreement in Las Vegas,
Nevada, as of the dates indicated below.
XXXXXXX WOODEN
/s/ Xxxxxxx Wooden
_______________________________
Dated: March 4, 2005
POSTER FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Poster
____________________________
Name: Xxxxxxx X. Poster
Title: Chairman and Chief
Executive Officer
Dated: March 4, 2005
GNLV, CORP.
/s/ Xxxxxx X. Xxxxxxx
By:____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Sr. V.P. & General Counsel
Dated: March 4, 2005
GNL, CORP.
/s/ Xxxxxx X. Xxxxxxx
By:____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Sr. V.P. & General Counsel
Dated: March 4, 2005
GOLDEN NUGGET EXPERIENCE LLC
/s/ Xxxxxx X. Xxxxxxx
By:____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Sr. V.P. & General Counsel
Dated: March 4, 2005
EXHIBIT A
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Name of Report: Generated By:
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Including, but not limited to:
Arrival Report Room Reservation
Departure Report Room Reservation
Master Gaming Report Casino Audit
Department Financial Statement Finance
$5K Over High Action Play Report Casino Marketing
$50K Over High Action Play Report Casino Marketing
Collection Aging Report(s) Collection Department
Accounts Receivable Aging Finance
Marketing Reports Marketing
Daily Player Action Report Casino Operations
Daily Operating Report Casino Audit
Database Marketing Reports Database Marketing
