EXHIBIT 10.2
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this "Amendment") is made
and entered into as of the 5th day of October 2001 by and between AMERISTAR
CASINOS, INC., a Nevada corporation (the "Employer"), and XXXXXX X. XXXXXXXXXX
(the "Employee") for the purpose of amending that certain Employment Agreement
dated November 15, 1993 between the parties (the "Agreement"). Unless otherwise
required by the context, capitalized terms used herein without definition have
the same meaning as used in the Agreement. This Amendment has been authorized
and approved by the Board of Directors of the Employer and the Compensation
Committee of the Board of Directors of the Employer.
1. AMENDMENT OF SECTION 5.3 OF THE AGREEMENT. Section 5.3 of the
Agreement is hereby amended to read in its entirety as follows:
"5.3 VOLUNTARY TERMINATION BY THE EMPLOYEE FOR GOOD REASON. The
Employee shall be entitled to terminate this Agreement and his
employment under this Agreement at any time for any of the following
reasons or upon any of the following events:
(a) if the Employer significantly and adversely changes
the nature or scope of the Employee's authorities or duties;
provided, however, that the appointment of a new chief financial
officer of the Employer shall not constitute such a change in
nature or scope until sixty (60) days after the commencement of
employment of any such new chief financial officer;
(b) if the Employer reduces the Employee's base salary;
(c) if the Employer materially decreases the benefits
made available to the Employee (other than decreases imposed
equally upon all of the Employer's other employees or all of its
executive officers);
(d) if the Employer requires the Employee to relocate
out of the greater metropolitan Las Vegas, Nevada area or
requires the Employee to undertake new and excessive business
travel without the Employee's prior consent; or
(e) at any time on or after July 1, 2002, with thirty
(30) days' prior written notice to the Employer."
2. AMENDMENT OF SECTION 5.5(b) OF THE AGREEMENT. Section 5.5(b) of
the Agreement is hereby amended to read in its entirety as follows:
"(b) VOLUNTARY TERMINATION BY THE EMPLOYER WITHOUT CAUSE OR
UPON VOLUNTARY TERMINATION BY THE EMPLOYEE FOR GOOD REASON. If the
Employer shall terminate this Agreement and the Employee's employment
hereunder without cause, as permitted by Section 5.2 of this Agreement,
or if the Employee
shall terminate this Agreement and his employment hereunder, as
permitted by Section 5.3 of this Agreement, then:
(1) the Employee shall be entitled to receive any
unpaid compensation earned by and vested in him through the
effective date of termination as provided for in this Agreement,
computed pro rata up to and including that date;
(2) the Employer shall pay to the Employee as severance
the amount of Two Hundred Seventy-Five Thousand and 00/100
Dollars ($275,000.00);
(3) if the Employee's employment shall terminate prior
to the payment by the Employer to the Employee of the Employee's
annual bonus for the 2001 fiscal year, the Employer shall pay to
the Employee an additional severance payment (prorated as
provided below) based on an annual bonus amount ranging from a
minimum of Seventy-Five Thousand and 00/100 Dollars ($75,000.00)
to a maximum of One Hundred Twenty-Five Thousand and 00/100
Dollars ($125,000.00), which annual bonus amount shall be
determined by the President and Chief Executive Officer of the
Employer based on merit, the financial performance of the
Employer and other relevant factors; provided, however that such
determination shall be subject to the approval of the
Compensation Committee of the Board of Directors of the Employer;
and provided, further, that the additional severance amount
payable pursuant to this clause shall be computed pro rata up to
and including that date of termination of the Employee's
employment;
(4) notwithstanding any contrary provisions of any
stock option agreements between the Employer and the Employee:
(A) such options shall terminate upon the later
of one year after the termination date of Employee's
employment with the Employer and 90 days after the
termination of any other qualifying relationship between
the parties (e.g., a consulting relationship) unless the
Employee has resumed or initiated a qualifying
relationship and has such a qualifying relationship on
such date. During such period, the Employee may exercise
such options provided that any such option has not expired
in accordance with its terms or has otherwise terminated
as provided in the applicable stock option agreement;
(B) all unvested options granted to the Employee
prior to 2000 shall be deemed fully vested on the date of
termination of the Employee's employment with the
Employer; and
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(c) if the Employee's employment shall terminate
on or after December 15, 2001, the vesting of the option
exercisable for 20,000 shares granted on October 16, 2000
by the Employer to the Employee shall be accelerated with
respect to 7,200 of such shares, and such option shall be
deemed fully vested with respect to such 7,200 shares on
the date of termination of the Employee's employment with
the Employer (in addition to the vesting of such option
with respect to 5,000 shares on October 16, 2001, as
provided in the applicable stock option agreement); and
(5) the Employer shall continue the Employee's group
health and Exec-U-Care or similar insurance, at the Employer's
expense, for eighteen (18) months after the termination of
employment or, at the Employer's option, payment to the Employee
of the economic equivalent thereof. Upon the completion of such
period, the Employee shall be eligible for COBRA benefits;
provided, however, that the provision of such severance and other
benefits shall not determine, govern or affect the Employee's
entitlement to (x) any payments or benefits under any bonus or
incentive plan now or in the future in effect for the Employer,
(y) any accrued vacation or other compensation under any other
plan, policy or arrangement provided by the Employer or its
Affiliates, or (z) any other employee benefit plan or
arrangement, and shall not expressly or implicitly constitute
continued employment. Except as otherwise specifically provided
herein, the Employee shall be entitled to no other compensation
or participation in any benefit program after the effective date
of termination. The receipt by the Employee of the benefits
provided for in this Section 5.5(b) shall be subject to the
condition that the Employee accepts and executes, without
subsequent revocation, a release of claims substantially in the
form attached hereto as Exhibit A."
3. AMENDMENT OF SECTION 9 OF THE AGREEMENT. Section 9 of the
Agreement is hereby amended to read in its entirety as follows:
"9 POLICY ON TRADING IN SECURITIES OF THE EMPLOYER. The
Employee acknowledges receipt of the Ameristar Casinos, Inc. Policy on
Securities Trading by Employees and Their Associates, and agrees to
abide by the terms thereof as a condition to his continued employment by
the Employer. The Employee agrees to reaffirm his receipt and
understanding of such policy annually in writing to the Employer as and
when requested by the Employee's supervisor."
4. INCREASE IN BASE SALARY. Effective September 1, 2001, Employee's
annual base salary shall be increased to Three Hundred Thousand and 00/100
Dollars ($300,000.00). The Employer shall pay to the Employee retroactive back
pay, as necessary, to give effect to this increase in annual base salary,
subject to required payroll withholding.
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5. BONUS FOR 2001. The Employee shall be entitled to an annual bonus
for the 2001 fiscal year ranging from a minimum of Seventy-Five Thousand and
00/100 Dollars ($75,000.00) to a maximum of One Hundred Twenty-Five Thousand and
00/100 Dollars ($125,000.00), which shall be determined by the President and
Chief Executive Officer of the Employer based on merit, the financial
performance of the Employer and other relevant factors; provided, however that
such determination shall be subject to the approval of the Compensation
Committee of the Board of Directors of the Employer. This bonus shall be paid at
the same time as annual bonuses are paid to other similarly situated management
personnel of the Employer, unless the Employee has elected to defer receipt of
all or part of the bonus amounts to which he is entitled in respect of 2001 in
accordance with the terms and provisions of any deferred compensation plan
maintained by the Employer. This bonus shall be payable only if the Employee is
employed by the Employer at the time of payment of the bonus.
6. ADDITION OF EXHIBIT A TO THE AGREEMENT. There is hereby added to
the Agreement an Exhibit A reading in its entirety as set forth in Exhibit A to
this Amendment.
7. DELETION OF SECTION 3.3. Section 3.3 of the Agreement is hereby
amended to read its entirety as follows: "3.3 [Intentionally Omitted]."
8. ACKNOWLEDGMENT BY THE EMPLOYEE. The Employee represents and
acknowledges the following:
(a) he has carefully read the Agreement and this
Amendment in their entirety;
(b) he understands the terms and conditions contained
therein and herein;
(c) he has had the opportunity to review this Amendment
with legal counsel of his own choosing, and has done so or has
knowingly chosen not to do so, and has not relied on any
statements made by the Employer or its legal counsel as to the
meaning of any term or condition contained in the Agreement and
this Amendment or in deciding whether to enter into this
Amendment; and
(d) he is entering into this Amendment knowingly and
voluntarily.
9. AGREEMENT REMAINS IN FULL FORCE AND EFFECT. Except as modified
hereby, the Agreement remains in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
EMPLOYER:
AMERISTAR CASINOS, INC.
By: /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Senior Vice President of Legal Affairs
EMPLOYEE:
/s/ XXXXXX X. XXXXXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxxxxx
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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. XXXXXXXXXX (the "Employee") and AMERISTAR
CASINOS, INC., a Nevada corporation (the "Employer"), with respect to separation
payments to be paid to the Employee conditioned in part on a complete release by
the Employee of any and all claims against the Employer and its affiliated
entities, their respective directors, officers, employees, agents, accountants,
attorneys, representatives, successors and assigns.
In consideration of delivery to the Employee of the severance payments
and benefits by the Employer conditionally promised by the Employer in that
certain Employment Agreement by and between the Employee and the Employer dated
November 15, 1993, as amended by an Amendment No. 1 to Employment Agreement
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 Employee's claims to vested interests the Employee may have
in employee benefit plans, stock options or restricted stock as defined
exclusively in written documents, the Employee and the Employee's heirs,
successors and assigns do hereby and forever release and discharge the Employer
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 Employee 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 Employee does not know or suspect to exist in his
favor at the time of executing this release, which if known by the Employee must
or might have materially affected his settlement with the Employer.
The Employee and the Employer 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 Employee and the Employer. The Employee and the
Employer 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 Employee and the Employer 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 Employee and the Employer agree that any and all disputes,
controversies or claims arising out of this Agreement or concerning his
employment or its termination shall be determined exclusively by final and
binding arbitration pursuant to the terms of the Employment Agreement.
The Employee acknowledges that he has had twenty-one (21) days within
which to consider this Agreement if he has wished to do so, that he has seven
(7) days from the date of his acceptance of this Agreement within which to
revoke his acceptance, that he has been and hereby is advised by the Employer to
consult with counsel concerning this Agreement and has had an opportunity to do
so, and that no payments will be made to the Employee by the Employer hereunder
until after such seven (7) days and until the Employee shall have provided
thereafter reasonable assurances on request that he has not revoked his
acceptance of this Agreement within such seven (7) days. The Employee affirms
that he enters into this Agreement freely and voluntarily.
Dated _____________, _____ at ____________________________, ____________
________________________________________
the Employee
Dated _____________, _____ at ____________________________, ____________
AMERISTAR CASINOS, INC.
By _____________________________________
Its ____________________________________
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