SEPARATION AND RELEASE AGREEMENT
Exhibit
99.1
THIS
SEPARATION AND RELEASE AGREEMENT (the “Agreement”) is entered into as of the
14th day of April 2009, by and between, XXXXXX XXXXXXXXX, Chief Financial
Officer of the Company (“Employee”) and EMPIRE RESORTS, INC. (the
“Company”).
WHEREAS, Employee currently
serves as Chief Financial Officer of the Company;
WHEREAS, Employee is not
currently a party to an employment agreement with the Company or any of its
affiliates;
WHEREAS, Employee’s employment
with the Company shall cease as of June 30, 2009; and
WHEREAS, this Agreement
governs the terms of Employee’s separation from the Company.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereby agree
as follows:
1. Termination
Date. Employee acknowledges that his last day of employment
with the Company is June 30, 2009 (the “Termination Date”), and within five
business days following the Termination Date, that the Company will (to the
extent it has not already done so) pay his salary through the Termination
Date. Employee understands and agrees that, as of the Termination
Date, he is no longer authorized to incur any expenses, obligations or
liabilities on behalf of the Company and that he has previously submitted for
reimbursement any outstanding expenses incurred for which he seeks
reimbursement. Employee further understands and agrees that, as of
the Termination Date, he is no longer authorized to conduct any business on
behalf of the Company or to hold himself out as an employee, agent or
representative of the Company. In addition, on the date hereof
Employee hereby resigns as an officer of the Company and an officer, manager
and/or director of all of the Company’s subsidiaries and
affiliates.
2. Severance. (a) As
severance and in consideration of Employee’s agreement to comply with the
covenants set forth herein, Employee shall be paid a lump sum payment in the
amount of fifty one thousand six hundred sixty seven dollars ($51,667.00), which
payment shall be made (within three (3) business days following the lapse of the
Revocation Period (as defined below)) by check or direct deposit to the
Employee’s current address, net of applicable federal, state and local taxes in
accordance with the Company’s prior practices. All options to
purchase common stock of the Company held by Employee, as listed on Exhibit A attached
hereto, are either fully vested as of the Termination Date or shall become so in
connection with the execution of this Agreement and shall continue to remain
exercisable through the dates set forth on Exhibit
A. Employee acknowledges and agrees that Employee is not
entitled to any other payments, compensation or benefits from the Company aside
from what is set forth within paragraphs 1, 2, 3, and 6 of this
Agreement.
(b) Following
the Termination Date, the Company shall cause Employee to continue to be covered
by the director and officer indemnification currently contained in the Company’s
by-laws and certificate of incorporation, and by the Company’s current and
future director and officer liability insurance policies, to the same extent as
any officer or director of the Company as of the date of this Agreement, for the
duration of the statute of limitations in respect of any activities of Employee
as a director, officer or employee of the Company or any of its affiliates prior
to the Termination Date.
(c) Employee
will be eligible to pay applicable COBRA rates in accordance with applicable
law.
3. Release. In
exchange for the consideration provided for in this Agreement, Employee
irrevocably and unconditionally releases the Company, its predecessors, parents,
subsidiaries, affiliates, and past, present and future officers, directors,
agents, consultants, employees and representatives, as applicable, together with
all successors and assigns of any of the foregoing (collectively, the
“Releasees”), of and from all claims, demands, actions, causes of action, rights
of action, contracts, controversies, covenants, obligations, agreements,
damages, penalties, interest, fees, expenses, costs, remedies, reckonings,
extents, responsibilities, liabilities, suits and proceedings of whatsoever
kind, nature or description, direct or indirect, vested or contingent, known or
unknown, suspected or unsuspected, in contract, tort, law, equity or otherwise,
under the laws of any jurisdiction, that the Employee or his predecessors, legal
representatives, successors or assigns, ever had, now has or hereafter can,
shall, or may have, against the Releasees, as set forth above, jointly or
severally, for, upon, or by reason of any matter, cause, or thing whatsoever,
from the beginning of the world through, and including, the date of this
Agreement (“Claims”). Notwithstanding the foregoing, the following
Claims are not released pursuant to this Agreement:
(a) rights
of Employee under the Agreement (including with respect to the options set forth
on Exhibit A);
(b) the
right of Employee to receive vested benefits required to be paid in accordance
with applicable law (including, without limitation, COBRA continuation
coverage);
(c) rights
to indemnification Employee may have (i) under applicable corporate law, (ii)
under the by-laws or certificate of incorporation of the Company or any
affiliate or (iii) as an insured under any director and officer liability
insurance policy now or previously in force; and
(d) claims
for the reimbursement of unreimbursed business expenses incurred prior to the
date of termination pursuant to applicable policy of the Company (which shall be
submitted by Employee promptly after receipt of the applicable invoices and
reimbursed by the Company promptly after submission).
4. Statutory
Matters. Such release includes, but is not limited to,
the violation prior to the date of this Agreement of any express or implied
contract; any federal, state or local laws, restricting an employer’s right to
terminate employees, or otherwise regulating employment; workers compensation,
wage and hour, or other employee relations statutes, executive orders,
ordinance, or regulations, including any rights or claims under Title VII of the
Civil Rights Act of 1964, as amended the Civil Rights Act of 1991, the Americans
with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Family and
Medical Leave Act of 1993, the Civil Rights Act of 1866, the Employee Retirement
Income Security Act of 1974, the Age Discrimination in Employment Act of 1967,
the Fair Labor Standards Act, the WARN Act, or any state or local laws covering
the same subject matter; tort (including, without limitation, negligent conduct,
invasion of privacy and defamation); any federal, state, or local laws providing
recourse for retaliation, wrongful discharge, dismissal or other obligations
arising out of public policy, physical or personal injury, fraud, negligent
misrepresentations, and similar or related claims. The laws referred
to in this section include statutes, regulations, other administrative guidance,
and common law doctrines. Any and all claims and/or disputes arising
prior to the date of this Agreement out of or relating to any of the foregoing
shall be, and are, finally compromised, released and settled.
5. Unknown Claims,
Etc. Employee understands that this Agreement releases
claims that he may not know about. This is Employee’s knowing and
voluntary intent, even though Employee recognizes that someday he might learn
that some or all of the facts that he currently believes to be true are untrue
and even though he might then regret having signed this
Agreement. Notwithstanding the foregoing, this release does not
include Employee’s right to enforce the terms of this Agreement.
Except to
enforce this Agreement, Employee agrees that he will not pursue, file or assert
or cause to be pursued, filed or asserted any civil action, suit or legal
proceeding seeking equitable or monetary relief (nor will he seek or in any way
obtain or accept any such relief in any civil action, suit or legal proceeding)
in connection with any matter concerning his employment relationship with the
Company and/or the termination thereof with respect to all of the Claims
released herein arising from the beginning of the world up to and including the
date of this Agreement (whether known or unknown to him and including any
continuing effects of any acts or practices prior to the date of this
Agreement). Except for the payments and benefits set forth herein,
Employee acknowledges that he has been paid all wages and other amounts due to
him through the Termination Date and that, except for the payments and benefits
set forth herein, he is not entitled to any other payments or benefits of any
kind.
If
Employee should bring any action arising out of the subject matter covered by
this Agreement, except to enforce this Agreement, he understands and recognizes
that he will, at the option of the Company, be considered in breach of this
Agreement. Furthermore, the party prevailing on the issues so
presented shall be entitled to be reimbursed by the other party for all of the
reasonable costs and expenses incurred in defending or prosecuting such an
action, including reasonable attorneys’ fees. The Company shall pay
or reimburse such percentage of all reasonable legal fees and expenses incurred
by Employee in any action to enforce this Agreement against the Company as are
consistent with the percentage of all material disputes in such action that are
decided in Employee’s favor.
The
Company, with the intention of binding itself and its predecessors and
successors, does hereby release, remise, acquit and forever discharge Employee
and his heirs, estate, executors, administrators and assigns (collectively, the
“Employee Released Parties”), of and from any and all claims, actions, causes of
action, complaints, charges, demands, rights, damages, debts, sums of money,
accounts, financial obligations, suits, expenses, attorneys’ fees and
liabilities of whatever kind or nature in law, equity or otherwise, whether
accrued, absolute, contingent, unliquidated or otherwise and whether now known
or unknown, suspected or unsuspected, which the Company, individually or as a
member of a class, now has, owns or holds, or has at any time heretofore had,
owned or held, against any Employee Released Party, excepting only:
(a) Rights
of the Company under this Agreement and the employee benefit plans of the
Company; and
(b) Rights
of the Company arising by reason of Executive having committed a crime, an act
or omission to act which constitutes willful misconduct or gross negligence or
breach of fiduciary responsibilities or his duty of loyalty.
6. Company Information and
Property. Employee agrees that immediately following the
Termination Date he will return to the Company all Company property and
information in his possession, including, but not limited to, Company reports,
customer lists, supplier lists, consultant lists, formulas, files, manuals,
memoranda, computer equipment, access codes, discs, software, and any other
Company business information or records, in any form in which they are
maintained, including records or information regarding Company customers,
suppliers and vendors, and Company products and product development, and agrees
that he will not retain any copies, duplicates, reproductions, or excerpts
thereof in any form, provided, however, that Employee shall not be required to
return his computer and relevant files contained therein to extent necessary to
allow Employee to consult with the Company pursuant to Section 11
hereof. Employee further agrees that he will not, in any manner, make
use of any Company property and information in any future dealings, business or
otherwise and acknowledges that any use of Company property and information in
any future dealings, business or otherwise, would constitute a breach of this
Agreement. Employee acknowledges that any material breach of this
section would cause irreparable injury to the Company for which there is no
adequate remedy at law and in addition to any remedies that may be available to
the Company in the event of a material breach or threatened breach of this
section by Employee, including monetary damages, the Company shall be entitled
to obtain a temporary restraining order and/or a preliminary or permanent
injunction that would prevent Employee from violating or attempting to violate
the provisions of this section of this Agreement. In any such action,
the party prevailing shall be entitled to be reimbursed by the other party for
all reasonable costs and fees incurred, including reasonable attorneys’
fees.
7. Non-disparagement; Agreement
Not To Oppose; Public Communication. Each of the Company and
Employee represents and agrees that it or he shall refrain from making any
written or oral statements to any person or entity with whom the Company or
Employee has had or may have a business or social relationship that may
reasonably be expected to impugn or degrade the character, integrity, or ethics
of the other and, as regards the Company, its affiliates, officers, directors,
employees or clients, or that may reasonably be expected to damage the business,
image or reputation of the other and, as regards the Company, its affiliates,
officers, directors, employees or clients. The Company shall also use
its commercially reasonable efforts to cause its directors and senior executive
officers to comply with the immediately preceding sentence. In
addition, Employee agrees not to oppose efforts that may be made by the Company
to obtain legalized gaming or Indian gaming at the Concord site or the existing
Monticello Raceway site, or to oppose any legislation which could impact
Monticello Raceway or the proposed development at the Concord
site. For a period two years from the Termination Date, Employee
shall not issue any press release or engage in any other, similar form of public
communication regarding his employment with the Company, this Agreement or the
matters set forth herein (it being understood that Employee may discuss his
services to the Company in connection with future employment, including,
self-employment, and that this restriction does not apply to the extent of any
legally binding order of a court of competent jurisdiction or regulatory
body.)
8. Non-Competition. For
a period ending on March 30, 2010, the Employee shall not, directly or
indirectly, without the prior written consent of the Company, own, manage,
operate, join, control, be employed by, consult with or participate in the
ownership, management, operation or control of, or be connected with (as a
stockholder, partner, or otherwise) the gaming industry in the State of New York
or any other jurisdiction which directly competes with the Company; provided,
however, that (i) it is acknowledged by the parties hereto that the Class II
gaming operations of the Company currently conducted in Monticello, New York,
without the passage of any legislation pertaining to electronic table games, is
not directly competitive with Class III gaming in the subject
jurisdictions, and (ii) the “beneficial ownership” (as that term is defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) by the Employee after his termination of employment with the Company,
either individually or as a member of a "group" for purposes of Section 13(d)(3)
under the Exchange Act and the regulations promulgated thereunder, of not more
than two percent (2%) of the voting stock of any of these corporations which are
publicly held shall not be a violation of this Agreement. In
addition, the Employee shall not, either directly or indirectly, alone or in
conjunction with another person, interfere with or harm, or attempt to interfere
with or harm, the relationship of the Company, its subsidiaries and/or
affiliates, with any person who at any time was an employee of the
Company.
9. Applicable Law and
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to its conflicts of law principles. Any dispute regarding this
Agreement or the Employee’s employment shall be resolved in the federal or state
courts located in the State of New York, without a jury (which is hereby
expressly waived).
10. Entire
Agreement. This Agreement may not be changed or altered,
except by a writing signed by both parties. Until such time as this Agreement
has been executed and subscribed by both parties hereto: (i) its
terms and conditions and any discussion relating thereto, without any exception
whatsoever, shall not be binding nor enforceable for any purpose upon either
party; and (ii) no provision contained herein shall be construed as an
inducement to act or to withhold an action, or be relied upon as such. This
Agreement constitutes an integrated, written contract, expressing the entire
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
oral or written, between the parties with respect to such subject
matter. This Agreement may be executed in two or more counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
11. Agreement to
Consult. Employee agrees that, after the Termination Date, he
shall make himself available, upon reasonable notice, to consult with the
Company on matters requested by the Company, including, but not limited to,
subsequent Form 10-Qs and the transition of the Company’s offices to New York. Such consulting shall be on a per diem basis at rates
consistent with Employee’s current compensation level.
12. Assignment. Employee
has not assigned or transferred any claim he is releasing, nor has he purported
to do so. If any provision in this Agreement is found to be
unenforceable, all other provisions will remain fully enforceable. This
Agreement binds each of the parties and its or his heirs, administrators,
representatives, executors, successors, and assigns, and will inure to the
benefit of each of the parties and its or his heirs, administrators,
representatives, executors, successors, and assigns and the
Releasees.
13. Binding
Effect. This Agreement will be deemed binding and effective
immediately upon its execution by the Employee; provided, however, that in
accordance with the Age Discrimination in Employment Act of 1967 (“ADEA”) (29
U.S.C. § 626, as amended), Employee’s waiver of ADEA claims under this Agreement
is subject to the following: Employee may consider the terms of his
waiver of claims under the ADEA for twenty-one (21) days before signing it and
may consult legal counsel if Employee so desires. Employee may revoke
his waiver of claims under the ADEA within seven (7) days of the day he executes
and delivers this Agreement (the period of seven (7) days following the
execution and delivery of this Agreement by Employee is herein referred to as
the “Revocation Period”). Employee’s waiver of claims under the ADEA
will not become effective until the eighth (8th) day following Employee’s
signing and delivery of this Agreement. Employee may revoke his
waiver of ADEA claims under this Agreement by delivering written notice of his
revocation, via facsimile and overnight mail, before the end of the seventh
(7th) day following Employee’s signing and delivery of this Agreement to: Xxxxxx
Xxxxxxxx, Esq., Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP, Park Avenue
Tower, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (fax 000-000-0000). In the event that
Employee revokes his waiver of ADEA claims under this Agreement prior to the
eighth (8th) day after signing and delivering it, this Agreement shall be null
and void. Employee further understands that if Employee does not
revoke the ADEA waiver in this Agreement within seven (7) days after signing and
delivering this Agreement, his waiver of ADEA claims will be final, binding,
enforceable, and irrevocable.
14. Acknowledgement. Employee
acknowledges that he: (a) has carefully read this Agreement in its entirety; (b)
has been presented with the opportunity to consider it for at least twenty-one
(21) days; (c) has been advised to consult and has been provided with an
opportunity to consult with legal counsel of his choosing in connection with
this Agreement; (d) fully understands the significance of all of the terms and
conditions of this Agreement and has discussed them with his independent legal
counsel or has been provided with a reasonable opportunity to do so; (e) has had
answered to his satisfaction any questions asked with regard to the meaning and
significance of any of the provisions of this Agreement; and (f) is signing this
Agreement voluntarily and of his own free will and agrees to abide by all the
terms and conditions contained herein.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the first date
set forth above.
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EMPIRE
RESORTS, INC.
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By:
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/s/ Xxxxxxx Degliomi | |
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Signed
on:
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4/16/09 | |
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By:
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/s/ Xxxxxx Xxxxxxxxx | |
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Xxxxxx
Xxxxxxxxx
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Signed
on:
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4/16/09 | |
Exhibit
A
Options
Outstanding
1. Options
to purchase 90,000 shares of common stock of Empire Resorts, Inc. at $3.99 per
share granted on August 17, 2005. These shall remain exercisable
through June 30, 2012.
2. Options
to purchase 30,000 shares of common stock of Empire Resorts, Inc. at $5.53 per
share granted on August 10, 2006. These shall remain exercisable
through June 30, 2012.
3. Options
to purchase 40,000 shares of common stock of Empire Resorts, Inc. at $7.40 per
share granted on May 24, 2007. These shall remain exercisable through
June 30, 2012.
4. Options
to purchase 50,000 shares of common stock of Empire Resorts, Inc. at $2.98 per
share granted on July 21, 2008. These shall remain exercisable
through June 30, 2012.
To the
extent the Company (i) maintains a registration statement with respect to shares
of the Company or (ii) permits “net issuance”, broker assisted or other cashless
exercise with respect to options held by directors or officers of the Company,
Employee shall continue to be provided with those features with respect to the
foregoing options.
