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EXHIBIT 10.2
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (the "Agreement") is hereby
entered into by and between Xxxxxx Xxxxxxx, an individual (the "Employee"), and
Venture Catalyst Incorporated, a Utah corporation (the "Company").
RECITALS
WHEREAS, the Employee has been employed by the Company since July 16,
1999; and
WHEREAS, the Employee and the Company have determined that it is in their
mutual best interests that the Employee resign from his position with the
Company and any other subsidiary or related entity of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereby agree as follows:
1. Unconditional Resignation. The Employee hereby voluntarily, unconditionally
and irrevocably resigns as an officer and director of the Company and any other
subsidiary or related entity of the Company as of September 29, 2000 (the
"Officer/Director Resignation Date"). The Company hereby accepts such
resignation and the Employee is relieved of all duties as an officer and
director of the Company effective as of the Officer/Director Resignation Date.
Concurrently with the execution of this Agreement, the Employee shall execute a
separate letter of resignation in a form acceptable to the Company. For the
period from September 29, 2000 through November 30, 2000, Employee shall
continue to serve as an employee of the Company as set forth in Exhibit A and
attached hereto.
2. Compensation, Expenses, Vacation Pay and Other Benefits. In consideration of
the mutual agreements contained herein, the Company agrees to pay Employee as
follows: (a) On the Officer/Director Resignation Date, $10,576.93, which
represents unused vacation pay and compensation earned or to be earned through
November 30, 2000 by the Employee; (b) On or as soon as practical after the
Officer/Director Resignation Date, Employer shall pay the remaining in lease
payments due on Employee's automobile (a 2000 Jaguar XJ8L), as well as $3,260.20
for mileage reimbursement on Employee's automobile for amounts that exceed the
mileage allowed under the terms of the automobile lease; (c) On the
Officer/Director Resignation Date, initial separation payment in the amount of
$10,576.93; and (d) The Company shall pay Employee's compensation through the
last day of his employment with the Company as set forth in Exhibit A. The
Employee acknowledges and agrees that the payment of the foregoing constitutes
full payment of any and all monies (including, but not limited to, any bonus
amounts) that he earned, that is owed to him, or shall be owed to him through
the final date of his employment with the Company. Following the
Officer/Director Resignation Date, Employee shall not be entitled to any
automobile benefits.
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3. Company Property. On or before November 30, 2000, the Employee shall return
to the Company all material property of the Company in the Employee's
possession, said property including but not limited to a pager (which has been
returned).
4. COBRA Benefits. The Employee (or any of his eligible dependents) may elect to
continue to participate in any of the Company's group health insurance plans
pursuant to COBRA, 29 U.S.C. Section 1161, et seq. Nothing in This Agreement is
intended to alter the terms of COBRA in any way and those terms shall remain
applicable in all respects.
5. Continuation of Benefits After the Final Date of Employment. Except as
expressly provided in this Agreement or in the plan documents governing the
Company's employee benefit plans as of the final date of his employment with the
Company, the Employee will no longer be eligible for, receive, accrue, or
participate in any other benefits or benefit plans provided by the Company,
including, without limitation, medical, dental and life insurance benefits and
the Company's 401(k) retirement plan; provided, however, that health care
coverage for the Employee and the Employee's dependents may be continued under
COBRA for as long as the Employee is eligible for such coverage and so long as
the Employee pays the required premiums.
6. Severance Benefits After the Officer/Director Resignation Date.
Notwithstanding his voluntary resignation, the Company shall provide, as
severance benefits, the following benefits to the Employee after (i) the
Employee's spouse executes the Spousal Consent in the form presented to the
Employee by the Company, (ii) Employee ceases to be employed by the Company,
(iii) return of the property referenced in Paragraph 3 of this Agreement, and
(iv) Employee and Employee's spouse executes any confirmations reasonably
requested by the Company relating to this Agreement (the "Settlement Date").
(a) Separation Payment. Company will pay Employee the additional
separation payment set forth in Exhibit A hereto.
(b) Final Severance Payment. Other than the compensation that Employee
shall earn as an employee of the Company and the other good and valuable
consideration agreed to herein, Employee should not be entitled to any other
severance payments from the Company after the Settlement Date.
7. Employee's Stock Options. Employee shall have ninety (90) days from the last
day of employment to exercise any and all of the stock options that he holds in
the Company which have vested as of September 29, 2000; all stock options which
have not vested as of September 29, 2000, shall be cancelled.
8. Transfer of Assets. The Company shall transfer to the Employee, after the
Employee's spouse executes the Spousal Consent in the form presented to the
Employee by the Company and appropriate assignment documents, the assets and
liabilities listed on Exhibit B hereto.
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9. General Release by the Employee. Except as to the obligations and rights of
the Parties, as are created by this Agreement, Employee, for himself and his
heirs, executors, administrators, assigns, affiliates, successors and agents
(collectively, the "Employee's Affiliates") hereby fully and without limitation
releases, forever discharges, and covenants not to xxx the Company, its Related
Entities and its and their agents, representatives, shareholders, owners,
officers, directors, employees, consultants, attorneys, auditors, accountants,
investigators, affiliates, successors and assigns (collectively referred to
herein as the "VCAT Releasees"), both individually and collectively, from any
and all rights, claims, demands, liabilities, actions, causes of action,
damages, losses, costs, expenses and compensation, of whatever nature
whatsoever, known or unknown, fixed or contingent ("Claims"), which the Employee
or any of the Employee's Affiliates has or may have or may claim to have against
the Releasees by reason of any matter, cause, or thing whatsoever, from the
beginning of time to the date of this Agreement, as extended through the
Settlement Date, including, without limiting the generality of the foregoing,
any Claims arising out of, based upon, or relating to the recruitment, hire,
employment, relocation, remuneration, investigation, or termination of the
Employee by any of the Releasees, any agreement or compensation arrangement
between the Employee and any of the Releasees, or any act or occurrence in
connection with any actual, existing, proposed, prospective or claimed ownership
interest of any nature of the Employee or the Employee's affiliates in equity
capital or rights in equity capital or other securities of any of the Releasees
to the maximum extent permitted by law.
The Employee specifically and expressly releases any Claims arising out
of or based on the California Fair Employment and Housing Act, as amended; Title
VII of the Civil Rights Act of 1964, as amended; the Americans With Disabilities
Act; the National Labor Relations Act, as amended; the Equal Pay Act; ERISA; any
provision of the California Labor Code; California common law of fraud,
misrepresentation, negligence, defamation, infliction of emotional distress, any
breach of contract or covenant claim, any tort claim, any violation of public
policy or wrongful termination; state or Federal wage and hour laws; or any
other state or Federal law, rule, or regulation dealing with the employment
relationship.
The Employee is aware of California Civil Code Section 1542, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
With full awareness and understanding of the above provision, the Employee
hereby waives any rights he may have under California Civil Code Section 1542.
10. Breach of Release. The Employee agrees that if he hereafter commences, joins
in, or in any manner seeks relief through any suit arising out of, based upon,
or relating to any of the
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Claims released by the Employee hereunder, or in any manner asserts against any
of the Releasees any of the Claims released by the Employee hereunder, the
Employee shall pay to such Releasee(s), as the case may be, in addition to any
other damages caused to such Releasee, as the case may be, all attorneys' fees
incurred in defending or otherwise responding to said suit or claim.
11. Confidentiality of Agreement. The Parties acknowledge that this Agreement
and certain related agreements may have to be disclosed in the Company's reports
filed with the U.S. Securities and Exchange Commission. Except as may be
required by law, neither the Employee, the Company, their attorneys, nor any
other person or persons acting by, through, under or in concert with them, shall
disclose any of the terms of or facts relating to this Agreement (other than to
state that the Company has filed this Agreement and/or agreements related
thereto as public documents) or the negotiation thereof to any individual or
entity, except for disclosures made among the Employee, his attorney, spouse,
children or tax advisors. The Employee, the Company and their affiliates, as
defined herein, further agree that under no circumstances will they induce,
encourage, solicit or assist any other person or entity to file or pursue any
proceeding of any kind against the Releasees.
12. Non-solicitation. Excluding those persons that are identified in Exhibit C,
the Employee, for a period of one year from the date of this Agreement, will not
solicit, hire or enter into a contract with an employee or former employee of
the Company with whom the Employee came into contact in connection with his
employment with the Company without first obtaining the Company's written
consent. Employee acknowledges that the breach of this provision shall result in
harm to the Company and that the damages for such breach are difficult to
assess. Therefore, should Employee breach this provision, Employee shall pay
Company, as liquidated damages, the sum equal to one year's salary of the
Company employee solicited.
13. Proprietary Information. The Employee acknowledges that certain information,
observations, and data obtained by him during the course of or related to his
employment with the Company and its Related Entities (including, without
limitation, certain financial information, shareholder information, product
design information, business plans, marketing plans or proposals, personnel
information, customer lists and other customer information) are the sole
property of the Company and its Related Entities and constitute trade secrets of
the Company and its Related Entities. The Employee agrees to promptly return all
files, customer lists, financial information and other property of the Company
and its Related Entities that are in the Employee's possession or control
without making copies thereof. The Employee further agrees that he will not
disclose to any person or use any such information, observations or data without
the written consent of the Company's Board of Directors. If the Employee is
served with a deposition subpoena or other legal process calling for the
disclosure of such information, or if he is contacted by any third person
requesting such information, he will immediately notify the Company's Chief
Financial Officer and will fully cooperate with the Company in minimizing the
disclosure thereof.
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14. Cooperation Clause. The Employee agrees to cooperate with the Company, its
Related Entities and their counsel (i) in any investigations (including internal
investigations) and audits of the Company's or any of its Related Entities'
management's current and past conduct and business and accounting practices and
(ii) in the Company's defense of, or other participation in, any administrative,
judicial, or other proceeding arising from any charge, complaint or other action
which has been or may be filed relating to the period during which the Employee
was engaged in employment with the Company and/or its Related Entities. Except
as required by law or authorized in advance by the Company's Board of Directors,
the Employee will not communicate, directly or indirectly, with any third party
concerning the management or governance of the Company and/or its Related
Entities, the operations of the Company and/or its Related Entities, the legal
positions taken by the Company and/or its Related Entities, or the financial
status of the Company and/or its Related Entities. The Employee shall direct
inquiries from third parties on these issues to the Company. The Employee
acknowledges that any violation of this Section 15 will result in irreparable
harm to the Company and its Related Entities and will give rise to an immediate
action by the Company and/or its Related Entities for injunctive relief.
15. Non-disparagement.
(a) The Employee agrees not to disparage or otherwise publish or
communicate derogatory statements or opinions about the Company,
its Related Entities, and/or its/their respective management,
products and services to any third party for a period of one (1)
year after the Resignation Date, provided that the provisions of
this Section: (a) shall not apply to testimony as a witness,
compliance with other legal obligations, the assertion of or
defense against any claim of breach of this Agreement (including
the Exhibits attached hereto), or statements or disclosures to
officers or directors of the Company or its Affiliates; and (b)
shall not require the Employee to make false statements or
disclosures.
(b) The Employer agrees not to disparage or otherwise publish or
communicate derogatory statements or opinions about the Employee,
Typhoon Capital, its/their Related Entities, and/or its/their
respective management, products and services to any third party
for a period of one (1) year after the Resignation Date, provided
that the provisions of this Section: (a) shall not apply to
testimony as a witness, compliance with other legal obligations,
the assertion of or defense against any claim of breach of this
Agreement (including the Exhibits attached hereto), or statements
or disclosures to the Employee; and (b) shall not require the
Employer to make false statements or disclosures.
(c) The Employee will not seek or accept employment by the Company or
its Related Entities at any time and if he does so, his application
need not be considered.
16. Press Release. The resignation of Employee's employment from the Company and
his cessation of duties as an officer and director of the Company shall be
announced substantially in
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the form of Exhibit D, attached to this Agreement. Employee and the Company
shall cooperate with each other in any statements regarding the end of the
Employee's employment relationship with the Company and the cessation of his
duties as an officer and director of the Company so as not to materially depart
from the statement described in this paragraph and in Exhibit D; provided,
however, that in addition to the information in statement, both the Employee and
the Company or any of their Affiliates may refer generally to differences
between the Employee's and the Company's decisions of which business
opportunities to pursue.
17. Indemnification of the Employee. If Employee incurs liability by reason of
actions lawfully taken by the Employee on behalf of the Company while he was
employed with the Company and within the authorized scope and duty of his
employment, or by reason of any authorized actions taken by the Employee at the
request of the Company in the defense or prosecution of any claims by the
Company, Employee shall be indemnified by the Company to the same extent and in
the same manner as other former directors or officers of the Company. Employee
shall be entitled to coverage under the directors and officers liability
insurance coverage maintained by the Company or its Affiliates (as in effect
from time to time) to the same extent as other former officers and directors of
the Company.
18. Remedies for Breach. Notwithstanding anything to the contrary herein, if the
Employee breaches his obligations under this Agreement, in addition to whatever
other rights the Company and/or its Related Entities may have, the Employee
shall forfeit his right to receive any further payments or benefits under this
Agreement.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to
principles of conflict of laws. The Company and the Employee each hereby agrees
that all actions or proceedings arising directly or indirectly hereunder,
whether instituted by the Employee or the Company, shall be litigated in courts
having situs within the State of California, County of San Diego and the
Employee and the Company each hereby expressly consents to the jurisdiction of
any local, state or Federal court located within said state and county, and
consent that any service of process in such action or proceeding may be made by
personal service upon the Employee or the Company wherever the Employee or the
Company may be located, respectively, or by certified or registered mail
directed to the Employee or the Company at his/its last known address. The
Employee and the Company each hereby waives trial by jury, any objection based
on forum non conveniens and any objection to venue of any action instituted
hereunder.
20. Attorneys' Fees. Except as provided herein, in any action, litigation or
proceeding between the parties arising out of or in relation to this Agreement,
each party shall bear its own costs and expenses, including reasonable
attorneys' fees.
21. Non-Admission of Liability. The Employee and the Company each understands
and agrees that neither the payment of any sum of money nor the execution of
this Agreement by the parties will constitute or be construed as an admission of
any liability whatsoever by any party.
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22. Withholding Taxes; Tax Reporting. The Company may, if required in its
reasonable judgment, withhold from any amounts payable under this Agreement all
such Federal, state, city and other taxes, and may file with appropriate
governmental authorities all such information returns or other reports with
respect to the tax consequences attendant to any amounts payable under this
Agreement, as may, in its reasonable judgment, be required by law.
23. Severability. If any one or more of the provisions contained herein (or
parts thereof), or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity
and enforceability of any such provision in every other respect and of the
remaining provisions hereof will not be in any way impaired or affected, it
being intended that all of the rights and privileges shall be enforceable to the
fullest extent permitted by law.
24. Entire Agreement. This Agreement represents the sole and entire agreement
among the parties and, except as expressly stated herein, supersedes all prior
agreements, negotiations and discussions between the Employee and the Company
with respect to the subject matters contained herein.
25. Waiver. No waiver by one party hereto at any time of any breach of, or
compliance with, any condition or provision of this Agreement to be performed by
the other party hereto may be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or at any prior or subsequent time.
26. Amendment. This Agreement may be modified or amended only if such
modification or amendment is agreed to in writing and signed by duly authorized
representatives of the parties hereto, which writing expressly states the intent
of the parties to modify this Agreement.
27. Counterparts. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original as against any party that has
signed it, but all of which together will constitute one and the same
instrument.
28. Assignment. This Agreement inures to the benefit of and is binding upon the
Company and its successors and assigns, but the Employee's rights under this
Agreement are not assignable.
29. Notice. All notices, requests, demands, claims and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a) if
personally delivered; (b) if sent by telecopy or facsimile; or (c) if mailed by
overnight or by first class, certified or registered mail, postage prepaid,
return receipt requested, and properly addressed as follows:
If to the Employee, to:
Xxxxxx Xxxxxxx
0000 Xxxxx Xxxx Xxxx. Xxxxx 0000
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Xxxxx Xxxxxx, XX 00000
(000) 000-0000
If to the Company, to:
Venture Catalyst Incorporated
16868 Xxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided above. Notice will conclusively be deemed to have been given
when personally delivered (including, but not limited to, by messenger or
courier); or if given by mail, on the date of delivery, if given by Federal
Express or other similar overnight service or on the third day after being sent
by first class, certified or registered mail; or if given by telecopy or
facsimile machine, when confirmation of transmission is indicated by the
sender's machine. Notices, requests, demands and other communications delivered
to legal counsel of any party hereto, whether or not such counsel shall consist
of in-house or outside counsel, shall not constitute duly given notice to any
party hereto.
30. Miscellaneous Provisions.
(a) The parties represent that they have read this Agreement and fully
understand all of its terms; that they have conferred with their attorneys; that
they have executed this Agreement without coercion or duress of any kind; and
that they understand any rights that they have or may have and sign this
Agreement with full knowledge of any such rights.
(b) The language in all parts of this Agreement must be in all cases construed
simply according to its fair meaning and not strictly for or against any party.
Whenever the context requires, all words used in the singular must be construed
to have been used in the plural, and vice versa, and each gender must include
any other gender. The captions of the Sections of this Agreement are for
convenience only and must not affect the construction or interpretation of any
of the provisions herein.
(c) Each provision of this Agreement to be performed by a party hereto is both a
covenant and condition, and is a material consideration for the other party's
performance hereunder, and any breach thereof by the party will be a material
default hereunder. All rights, remedies, undertakings, obligations, options,
covenants, conditions and agreements contained in this Agreement are cumulative
and no one of them is exclusive of any other. Time is of the essence in the
performance of this Agreement.
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(d) Each party acknowledges that no representation, statement or promise made by
the other party, or by the agent or attorney of such other party, has been
relied on by him or it in entering into this Agreement.
(e) Each party understands that the facts with respect to which this Agreement
is entered into may be materially different from those the parties now believe
to be true. Each party accepts and assumes this risk and agrees that this
Agreement and the release in it shall remain in full force and effect, and
legally binding, notwithstanding the discovery or existence of any additional or
different facts, or of any claims with respect to those facts.
(f) Each Party accepts the terms and conditions of this Agreement and agrees
that they are fair and reasonable.
(g) Unless expressly set forth otherwise, all references herein to a "day" are
deemed to be a reference to a calendar day. All references to "business day"
mean any day of the year other than a Saturday, Sunday or a public or bank
holiday in San Diego, California. Unless expressly stated otherwise,
cross-references herein refer to provisions within this Agreement and are not
references to the overall transaction or to any other document.
(h) Each party to this Agreement will cooperate fully in the execution of any
and all other documents and in the completion of any additional actions that may
be necessary or appropriate to give full force and effect to the terms and
intent of this Agreement.
THE EMPLOYEE AND THE COMPANY EACH ACKNOWLEDGES THAT HE/IT HAS READ THIS
AGREEMENT, UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT. THE EMPLOYEE
ACKNOWLEDGES AND UNDERSTANDS THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates indicated below.
VENTURE CATALYST INCORPORATED,
a Utah corporation
Dated: September 29, 2000 By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Executive Vice President
EMPLOYEE
Dated: September 29, 2000 By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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SPOUSAL CONSENT
I, Xxxxxxx Xxxxxxx, have read the Severance Agreement and General Release
(the "Agreement") entered into by and between Venture Catalyst Incorporated and
Xxxxxx Xxxxxxx, understand the contents of the Agreement, and do hereby consent
to the Agreement. I have been advised to consult with counsel of my choosing in
connection with this Spousal Consent and have been given ample opportunity to do
so. If I have not consulted with counsel in connection with this Spousal
Consent, I have knowingly and willingly elected not to do so.
Spouse
Dated: September 29, 2000 /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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