Exhibit 10(ff)
AGREEMENT AND RELEASE
This Agreement and Release ( the Agreement ) by and between
Circus Circus Enterprises, Inc., a Nevada Corporation (the
Company ), and Xxxxx X. Xxxxxx ( Executive ) is made and entered
into this 17th day of January, 1998.
W I T N E S S E T H:
WHEREAS, Executive and the Company deem it to be in their
respective best interests to enter into an agreement in connection
with Executive s resignation from his current position with the
Company and his continued employment with the Company following
such resignation;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, it is hereby
agreed as follows:
1. Executive hereby resigns from his positions as
Chairman of the Board and Chief Executive Officer of the Company
and as a member of the Company s Board of Directors, and the
Company accepts Executive s resignation from such positions,
effective January 16, 1998.
2. Executive elects, pursuant to Section 5(a) of the
Amendment and Restatement of Employment Agreement dated as of
October 1, 1997 by and between Executive and the Company ( the
Employment Agreement ) to continue his employment in a capacity
which the Company acknowledges satisfies the requirements of the
definition of Employee Participant for the purposes of the
Company s stock option plans, for a three-year term commencing
January 17, 1998 (the Employment Continuation Period ). Company
shall continue to employ Executive on a reasonable basis during
the Employment Continuation Period (subject to paragraph 5(b) of
the Employment Agreement) to provide services to the Company as
requested from time to time by any person then serving as the
Chairman of the Board or Vice Chairman of the Board of the
Company with respect to matters on which Executive worked prior
to the date hereof in his capacity as an officer of the Company.
To the extent any such services require, Executive shall be
provided with reasonable office facilities, secretarial and other
assistance. The Company and Executive agree that Executive shall
receive the compensation and, subject to paragraph 3 hereof with
respect to the Option (as defined), shall be fully vested in
his 1,050,000 stock options as provided by the Employment
Agreement and subject to the terms of this Agreement, Executive s
Employment Agreement and the Stock Option Plan, that all such
options may be exercised throughout the Employment Continuation
Period and shall remain bound by the covenants contained in
paragraph 6 of the Employment Agreement. Without limiting the
generality of the foregoing, during the Salary Continuation
Period the Company shall pay Executive the following: (a) base
salary at the rate of $882,000 per annum, increased by 5% per
year on June 1 of each year during the Salary Continuation
Period, payable semi-monthly; (b) all accrued and unpaid bonuses
as of the date hereof; and (c) an annual bonus equal to 100% of
Executive s then applicable base salary (pro-rated through the
end of the Salary Continuation Period) payable at the end of each
fiscal year of the Company and at the end of the Salary
Continuation Period ending after the end of a fiscal year. In
the event of Executive s death or disability during the
Employment Continuation Period, the payments provided herein
shall continue to be made to Executive or in the event of his
death, his spouse. Executive shall be entitled to all health,
medical, insurance and other benefits which he currently enjoys
through the end of the Salary Continuation Period. Subject to
the duties required of Executive pursuant to Paragraph 2 above,
and subject to Paragraph 6 of Executive s Employment Agreement
with the Company, the Company agrees that Executive s services
during the Salary Continuation Period shall be performed at times
and places mutually convenient to Executive and the Company
taking into account Executive s other obligations. The Company
agrees that Executive s options shall have the most favored
provisions applicable in the event of a merger or similar
transaction as apply to any other outstanding options of the
Company. At the end of the Employment Continuation Period, and
subject to the Company s fulfillment of its obligations
hereunder, Executive s employment shall end and he shall not be
entitled to any further compensation.
3. Executive agrees to sell to the Company, and the
Company agrees to purchase from Executive, Executive s option to
purchase 2,000,000 shares of the Company s Common Stock granted
to Executive on March 19, 1995 pursuant to the Company s 1995
Stock Option Plan (the Option ) for a purchase price of Two
Million Dollars ($2,000,000), representing the One Dollar ($1.00)
per share paid by Executive in consideration for the Company s
original issuance of the Option. Such purchase price shall be
payable by check within two (2) business days following the date
hereof. Delivery of such payment shall be in exchange for
Executive s surrender to the Company of the Option and, if
requested by the Company, his delivery of a written receipt
signed by Executive and his spouse acknowledging receipt of such
payment and the irrevocable disposition by Executive (and anyone
claiming through Executive) of all right, title and interest in
and to the Option.
4. Executive and the Company agree that except as
required by any applicable federal, state or local law, rule or
regulation, including without limitation, any securities or
gaming law, rule or regulation, neither of them will issue any
press release or make any public statement concerning his
employment with, resignation from his current positions with or
his eventual departure from, the Company without the prior
consent of the other, it being understood that each may respond
to reporters questions subject to the next sentence. Executive
and the Company further agree that they will not disparage each
other or any of the Company s Related Entities (as defined) or
the Company s or the Related Entities respective directors,
officers, employees, operations, properties or services in any
statements which they make to any third party.
5. In consideration of the Company s promises and
obligations set forth herein, which Executive acknowledges
provide him with valuable post-resignation compensation to which
he would not be entitled in the absence of this Agreement,
Executive hereby releases the Company and its subsidiaries and
other Related Entities (as defined) and the past, present and
future officers, directors, attorneys, employees, shareholders
and agents (in each case only with respect to their official
capacities with the Company) and the respective successors and
assigns of the Company and of the Related Entities from any and
all actions, charges, causes of action or claims of any kind,
known or unknown, which he ever had, now has or hereafter may
have arising out of any matter, occurrence or event existing or
occurring prior to his execution of this Agreement, including
without limitation, the following: any claims relating to or
arising out of his employment with and/or resignation as an
officer of the Company or any subsidiary of the Company, any
joint venture of which the Company or a subsidiary of the Company
is a party or any other entity with which Executive was employed
or served as a director at the request of the Company
(collectively Related Entitles ); any claims for unpaid or
withheld wages, severance, benefits, stock or stock options,
except as described in this Agreement, bonuses and/or
compensation of any kind other than compensation to which
Executive shall be entitled during the Employment Continuation
Period pursuant to the Employment Agreement; any claims for
attorney s fees, costs or expenses; any claims of discrimination
or harassment based on age, sex, race, religion, color, creed,
disability, handicap, citizenship, national origin, sexual
orientation or any other factor prohibited by federal, state or
local law and/or claims of retaliation thereunder (including, but
not limited to, claims for violation of Title VII of the Civil
Rights Act of 1964, as amended, and the Americans with
Disabilities Act); any claims arising under the Employee
Retirement Income Security Act; and/or other statutory or common
law claims now existing or hereinafter recognized, including but
not limited to, breach of contract, libel, slander, fraud,
whistleblower, wrongful discharge, promissory estoppel, equitable
estoppel and misrepresentation; provided that the Company shall
not be released from any and all indemnification obligations owed
to Executive pursuant to the Company s indemnification policies
and bylaws covering executive officers, directors or employees
for actions that have occurred during his term as an officer,
director or employee of the Company.
6. In consideration of the Executive s promises and
obligations set forth herein, the Company for itself and its
subsidiaries, the present officers and directors of the Company
and its subsidiaries, their successors and assigns, (hereinafter
referred to in this paragraph as the Company ) hereby releases
Executive from any and all actions, charges, causes of action or
claims of any kind, which Company, and each of them, ever had,
now has or hereafter may have, arising out of any matter,
occurrence or event existing or occurring prior to Executive s
execution of this Agreement, including without limitation the
following: any claims relating to or arising out of his
employment with and/or resignation as an officer of the Company;
provided that Executive is not released with respect to matters
not known to the officers of the Company as of the date hereof
and of a nature for which the Executive would not be entitled to
indemnification under the charter and bylaws of the Company.
7. Executive agrees and acknowledges that: (a) he
has been advised to and has had the opportunity to consult with
an attorney prior to executing this Agreement; (b) no promise or
inducement not expressed herein has been made to him; and (c) he
understands the meaning and effect of this Agreement and has
voluntarily consented to its terms.
8. During and after the Employment Continuation
Period, and subject to his other commitments, Executive shall
reasonably cooperate with the Company and its attorneys in
connection with any litigation or corporate transaction as to
which the Company requests information or participation.
9. If any term or provision of this Agreement is
determined by any Court of competent jurisdiction to be
unenforceable, illegal or invalid, the other terms and provisions
shall remain in full force and effect.
10. This Agreement constitutes the entire agreement
between Executive and the Company relating to the matters
described herein and supersedes all prior agreements (other than
the Employment Agreement) between him and the Company, oral or
written, express or implied. Except as provided herein to the
contrary, the terms and conditions of the Employment Agreement
shall remain in full force and effect. In the event of any
conflict between the Employment Agreement and this Agreement, the
terms of this Agreement shall control. This Agreement shall be
construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement and Release as of the date first above written.
EXECUTIVE CIRCUS CIRCUS ENTERPRISES, INC.
Xxxxx X. Xxxxxx By: Xxxx Xxxxxx
Xxxxx X. Xxxxxx
Title:____________________________
The undersigned, being the lawful spouse of Executive,
having read the foregoing document, acknowledges that she has
been advised to and has had the opportunity to consult with an
attorney prior to executing this Agreement which she acknowledges
involves assets which are or may be community property, hereby
consents to the terms of this Agreement, and specifically
consents to the sale of options as provided for in Paragraph 3
above, to the extent of her community property interest in such
assets.
Xxxx Xxxxxx
Xxxx Xxxxxx
