WAIVER AND RELEASE AGREEMENT
I. RECITALS
A. Xxxxx Xxxxxx (hereinafter referred to as "Forbes") has been formerly
employed by Century Casinos, Inc., and by its African subsidiary Century Casinos
Africa (Pty) Limited ("CCA") (collectively referred to as "CCI"). (The term CCI
shall also include all of CCI's subsidiaries and affiliates without exception.)
Forbes also provided services to CCI pursuant to a Management Agreement between
CCI and Respond Limited ("Respond"). Forbes and CCI are desirous of terminating
all their business, management and employment relationships in an amicable
manner under the terms of this Waiver and Release Agreement ("Waiver and
Release") except as specifically provided by this Waiver and Release. Forbes
also has held certain positions with CCI's subsidiaries and serves as a director
on CCI's Board. By this Waiver and Release the parties also reiterate and ensure
that all employment and business relationships between them are terminated,
including Forbes' status as one of CCI's directors, except as specifically
provided herein.
B. This Waiver and Release sets forth below the terms and conditions of an
amicable settlement and a full accord and satisfaction of all claims and
controversies between Forbes and CCI. Neither party admits to any wrongful
conduct by entering this release, and each party specifically denies such.
C. This Waiver and Release is executed in conjunction with the termination
of Forbes' employment, and other relationships, with CCI but the scope of this
Waiver and Release is broader than that. The parties intend to settle by this
Waiver and Release all matters between them relating to or arising out of events
occurring up to the date of this Waiver and Release.
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II. COVENANTS
A. CCI agrees to make the following payments to Forbes, in settlement of
any claims and as the entire payment for all claims that might have been brought
in any lawsuit or in any administrative forum, in any state of the United States
or in any other country, up to the date of the execution of this Waiver and
Release, including any claims for attorneys' fees and costs ("the payments").
The payments are also in consideration for Forbes' other agreements contained
herein. The parties agree that the payments represent consideration over and
above any amounts otherwise due Forbes and are adequate consideration for
Forbes' promises in this Waiver and Release. Payments under this Waiver and
Release shall be made pursuant to the employment and/or consulting services to
be performed by Forbes for CCI and CCA pursuant to this Waiver and Release, as
described in Exhibit A, which shall be an integral part of this Waiver and
Release. CCI waives any claims arising from or relating to Forbes' employment by
CCI.
B. In consideration of the payment by CCI to Forbes of the payments
described in Exhibit A, and in consideration of the promises of CCI contained in
Section II.A., above, Forbes, individually and on behalf of his successors,
heirs, and assigns, hereby forever releases, remises, waives, acquits, and
discharges CCI, together with any and all parent corporations of CCI and their
respective subsidiaries, successors, predecessors, assigns, directors, officers,
shareholders, supervisors, employees, attorneys, agents, and representatives,
from any and all actions, causes of action, claims, demands, losses, damages,
costs, attorneys' fees, judgments, liens, indebtedness, and liabilities
whatsoever, known or unknown, suspected or unsuspected, past or present, arising
from or relating or attributable to Forbes' employment by, or directorship with,
CCI, the termination of said employment, Forbes' contractor arrangement with
CCA, the
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termination of that contractor status, Forbes' subsequent search for other
employment to the date of this Agreement, and, without limiting the generality
of the foregoing, from any and all matters asserted, or which could have been
asserted, in any U.S. state or federal judicial or administrative forum, or in
any judicial or administrative forum in any country outside the United States,
up to the date of this Waiver and Release, specifically, but not by way of
limitation, including claims under the Fair Labor Standards Act, as amended, the
National Labor Relations Act, as amended, Title VII of the Civil Rights Act of
1964, as amended, the Post-Civil War Reconstruction Acts, as amended, the Age
Discrimination in Employment Act, as amended, the Americans with Disabilities
Act, the Civil Rights Act of 1991, the Family and Medical Leave Act, the
Employee Retirement Income Security Act of 1974, any state civil rights act, any
state statutory claim, including wage and hour claims, and any claim of wrongful
discharge, tort or contract arising out of the common law of any state in the
U.S., and any claim of any kind arising under the law of any country outside the
United States. Forbes further agrees not to pursue any claims he may have for
pain and suffering, intentional infliction of emotional distress, or similar
claims. Forbes further agrees that he will provide no support of any kind for
any person who threatens or brings any claim against CCI. Forbes will only
provide information to any person, who threatens or brings a claim against CCI,
under subpoena or court order and after informing CCI of the subpoena or court
order in question.
X. Xxxxxx hereby covenants and warrants that he has not assigned or
transferred to any person any portion of any claims which are released, remised,
waived, acquitted, and discharged in paragraph II-B above.
D. Also in consideration for the payments described in paragraph II.A.,
above, and in Exhibit A, Forbes agrees as follows:
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1. Forbes confirms that he has resigned from any positions with CCI,
effective no later than the date Forbes signs this Waiver and Release, including
any Director positions on the Board of Directors of CCI, or any of its parents,
affiliates or subsidiaries. Nevertheless, Forbes may, at his discretion, remain
a Director of CCAL through December 31, 2004, as detailed in Exhibit X. Xxxxxx
will execute these resignations on the form attached at Exhibit B, and Forbes
shall sign and date such resignation no later than the effective date of this
Waiver and Release and return it to Xxxxx Haitzmann.
2. Forbes agrees that he will return to CCI all property of CCI in his
possession, including but not limited to keys, credit cards, files, plans,
reports, and data of every kind relating to CCI's business, without limitation,
including but not limited to spreadsheets, calculations, and budgets. Forbes
recognizes that this obligation specifically includes any data relating to CCI's
business stored in any electronic medium, whatever, including but not limited
to, any computer system or laptop computer in Forbes' possession or to which
Forbes has access. Forbes agrees he will return such property within five (5)
days of the termination of his employment with CCA or the termination of his
status as a consultant with CCI/CCA, whichever occurs last, to Xxxxxxxx Xxxxx,
or such other persons designated by CCI. Nevertheless, the parties agree that as
an exception to this provision, Forbes may keep two CCI-provided cell phones,
computer, software, and printer, so long as any information pertaining to the
business of CCI (including trade secrets and Confidential Information) is first
deleted from such computer.
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3. Forbes recognizes that as a managerial employee or consultant and
director of CCI, he had and continues to have access to "Confidential
Information" of CCI. For purposes of this Waiver and Release, "Confidential
Information" shall include any of CCI's proprietary information or trade secret
information as defined by Colorado Law. "Confidential Information" specifically
includes, but is not limited to, the following types of information: designs,
drawings, specifications, data, documentation, diagrams, flow charts, research
(including market research), financial information, marketing and development
plans, customer names and other information relating to customers, price lists,
pricing and operational policy, and financial information. Information, however,
which is generally known in the trade, or generic information which is learned
outside of Forbes' association with CCI, shall not be deemed "Confidential
Information." Forbes agrees that he will not disclose CCI's "Confidential
Information" to any person, or entities, without CCI's prior written permission.
4. Forbes also agrees that, until December 31, 2003, Forbes will not,
either directly or indirectly, on Forbes' own behalf or in the service of or on
behalf of others, employ any employee of CCI, or solicit, or recruit any
employee of CCI to leave employment with CCI, or otherwise terminate employment
with CCI, or join a competitor of CCI.
5. Forbes expressly recognizes that any breach of his obligations under
this Waiver and Release would result in irreparable injury to CCI and agrees
that CCI shall be entitled to institute and prosecute proceedings in the
Delaware court, to enforce specific performance, or to enjoin Forbes from
activities in violation of, not withstanding any other provision of this Waiver
and Release. With regard to Forbes' obligations, Forbes also recognizes that any
remedy for CCI at law would be inadequate, and that CCI is or
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would be entitled to an injunction to enjoin the violations of Forbes'
obligations. Forbes specifically agrees that in the event of a violation or
threatened violation of these sub-paragraphs, CCI may obtain an injunction,
without posting any bond or other security, to restrain the unauthorized
violation or failure to comply with Forbes' obligations.
X. Xxxxxx and CCI agree to keep the substance of negotiations and
conditions of the settlement, and the terms and substance of this Waiver and
Release, strictly confidential, unless or until this Waiver and Release becomes
public knowledge as a consequence of CCI following SEC rules and/or advice of
legal counsel.
F. Apart from the consideration described in Exhibit A, which Forbes will
receive after the effective date of this Waiver and Release, each party will
bear its own costs and attorneys' fees. CCI shall, until December 31, 2003,
cover the cost associated with any casino licensing investigation Forbes might
become subject to because of his shareholding in CCI; this commitment from CCI
shall be valid only for casino licensing investigations triggered by CCI related
casino projects and automatically ends on December 31, 2003.
G. This Waiver and Release sets forth the complete agreement between the
parties. No other covenants or representations have been made or relied on by
the parties, and no other consideration, other than that set forth herein, is
due between the parties. Specifically, but without limiting the scope of the
foregoing, no payment of money between the parties is due in any way, in any
amount, or on account of any charge, including attorneys' fees, other than the
sum described in Exhibit X.
X. Xxxxxx represents that he has read this Waiver and Release and
understands each of its terms. Forbes further represents that no
representations, promises, agreements, stipulations, or statements have been
made by CCI, or its parent corporation
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or their respective subsidiaries, successors, predecessors, assigns, directors,
officers, employees, shareholders, supervisors, agents, attorneys, or
representatives to induce this settlement, beyond those contained herein. Forbes
further represents that he voluntarily signs this Waiver and Release as his own
free act.
I. If any provision of this Waiver and Release should be declared to be
unenforceable by any administrative agency or court of law, the remainder of the
Waiver and Release shall remain in full force and effect, and shall be binding
upon the parties hereto as if the invalidated provision were not part of this
Waiver and Release.
J. Delaware law shall govern the interpretation of this Waiver and Release.
K. The parties agree that they shall not publicly disparage or deprecate
each other, including their respective officers, directors or employees.
L. Any dispute concerning the interpretation of this Waiver and Release, or
the parties' obligations under this Waiver and Release, shall be resolved by
final binding arbitration, under the then-existing rules of Delaware.
M. If a party is required to initiate an action in court to enforce this
Waiver and Release, or to assert this Waiver and Release as a defense to an
action initiated by the other party, the prevailing party shall be entitled to
its costs and attorneys' fees from the other party, to the extent such costs and
fees are related to the enforcement of this Waiver and Release or the assertion
of it as a defense.
X. Xxxxxx certifies that, as of the date of this Waiver and Release, to the
best of his knowledge and professional judgment, all of CCI's books, financial
statements, and related data for which he was responsible, are in satisfactory
order and are in conformance with all rules, regulations, and laws that pertain
to such data and information.
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IN WITNESS THEREOF, and intending to be legally bound, the parties have
executed this Waiver and Release to be effective on the last date entered below.
CENTURY CASINOS, INC.
By: /s/ Xxxxx Haitzmann /s/ Xxxxx Xxxxxx
------------------------- -------------------------------
Its: Chief Executive Officer and XXXXX XXXXXX
Chairman of the Board
Date: 1st May 2003 Date: 1st May 2003
----------------------- -------------------------------
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------
Its: President and Vice Chairman
of the Board
Exhibit A
CCA - Forbes arrangement
1. Forbes and CCA agree that the employment shall be terminated and converted
into a consulting agreement. The termination of employment and simultaneous
change to consulting agreement (Forbes to assist and support CCA in the
Gauteng project) shall come into effect at the earlier of (i) Forbes
receiving permanent residence status in South Africa, or (ii) December 31,
2003. In any case, there shall neither be any employment nor any consulting
arrangement after December 31, 2003. Both the employment and the consulting
arrangements shall terminate immediately, without further notice, once
Forbes is employed by another casino, or casino associated, company. Any
assistance rendered to Silverstar Development Ltd. in connection with the
Gauteng project (whether or not rendered under the auspices of the
consulting agreement) will not be deemed employment by another casino, or
casino associated company.
2. The total payment from CCA to Forbes, no matter whether under an employment
arrangement or under a consulting agreement, shall be R 40 000, total cost
to company, per month.
3. Forbes and CCA agree that no other and no further payments or benefits
shall be due to Forbes arising out of the employment and/or consulting
arrangements. Acceptance of the terms hereof constitutes a full and final
settlement of all claims arising from the Labour Relations Act, 66 of 1995
or any labour legislation or civil claim, which the respective parties may
have against the other and Forbes hereby acknowledges that no further
payments or obligations are due to him by CCA on acceptance of the terms
hereof.
Exercise of options with CCI
4. CCI shall cooperate to the fullest extent permissible in assisting Forbes
(or nominated affiliated Trust / Entity) to utilize existing shares held
for the exercise of any or all of the options held and in the transfer of
any related rights from Forbes to the nominated affiliated Trust / Entity.
5. No matter when Forbes' employment with CCA ends, for the purpose of the
Employee Equity Incentive Plan ("EEIP") it shall be deemed to have ended on
April 1, 2003; this date shall also be the date on which the three months
time frame that Forbes has available to exercise his options commences.
Therefore, the last day on which Forbes, or his Trust / Entity, can
exercise the options is June 30, 2003.
Shares in CCA
6. In accordance with the provisions of the CCA Share Incentive Scheme, CCA
shall exercise its right to repurchase Forbes' shares in CCA at the price
Forbes paid for those shares, which is R 2 174 (two thousand one hundred
and seventy four Rand).
General
7. Forbes shall fully and exclusively cooperate with CCI/CCA in the
maintenance of its interests in the West Rand casino license/project until
December 31, 2003.
8. Should Forbes, before December 31, 2003, work with, for, or become
associated with, any casino or casino related company or project in an area
or province CCI (or any of its affiliates) is active in, this shall
constitute a material breach of this agreement by Forbes and none of the
above payments shall be payable/applicable save that any involvement by
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Forbes with Silverstar Development Ltd. (or its successor in title to the
Gauteng casino project) shall not constitute a breach of this agreement.
9. Forbes may elect to remain director of CCAL until 31 Dec 2004 as long as
Forbes is not working for (or in any other way associated with) another
casino company (with the exception of our Gauteng project until licensing).
10. CCA anticipates to look favorably upon an application from Forbes for the
CEO position of Silverstar, depending on CCA's final position and
arrangement with Silverstar.
11. CCI / CCA shall cooperate to the fullest extent with Forbes in the transfer
of current medical insurance, 401K, and cellphone accounts.
12. Equipment to be retained Forbes to also include cellphones x 2
13. CCI / CCA shall provide suitable testimonials / references as and when
required by Forbes.
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Exhibit B
TO: XXXXX HAITZMANN
Effective May 1, 2003, I hereby resign all positions with Century
Casinos, Inc. ("CCI") and its subsidiaries or affiliated companies,
including but not limited to the following:
- Board of Directors of Century Casinos, Inc.,
- Member of the Executive Committee of Century Casinos, Inc.'s board,
- Board of Directors of Century Casinos Africa (Pty) Ltd.,
- Board of Directors of Rhino Resorts Ltd.,
- CEO of Rhino Resorts Ltd. and of Century Casinos Westrand (Pty) Ltd.
I understand that this resignation is effective with respect to all
positions I hold with CCI, and its subsidiaries and affiliated
companies, including positions of Director, except that I can remain
an employee or consultant of Century Casinos Africa (Pty) Ltd ("CCA")
through December 31, 2003, under the terms of Exhibit A of the Waiver
and Release. I also understand that I may, at my discretion, remain a
Director of Century Casinos Caledon (Pty) Ltd. under circumstances
described in Exhibit A of the Waiver and Release, until December 31,
2004.
/s/ Xxxxx Xxxxxx
XXXXX XXXXXX
Date 1st May 2003
