EXHIBIT 10.17
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into as of
the 2nd day of August, 1999, by and between STATION CASINOS, INC., a Nevada
corporation, with its principal offices located at 0000 Xxxx Xxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxx 00000 (the "COMPANY"), and XXXX X. XXXXX (the "EXECUTIVE").
WHEREAS, the Company desires to employ the Executive on the terms and
conditions set forth herein; and
WHEREAS, the Executive desires to be employed by the Company on the terms
and conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the Company and
the Executive (each individually a "PARTY" and together the "PARTIES") agree as
follows.
1. DEFINITIONS. In addition to certain terms defined elsewhere in this
Agreement, the following terms shall have the following respective meanings:
1.1 "AFFILIATE" shall mean any Person controlling, controlled by or
under common control with, the Company.
1.2 "BASE AMOUNT" shall have the meaning ascribed to such term in
SECTION 280G of the Code.
1.3 "BASE SALARY" shall mean the salary provided for in SUBSECTION 3.1
of this Agreement.
1.4 "BOARD" shall mean the Board of Directors of the Company.
1.5 "CAUSE" shall mean that the Executive:
(a) has been formally charged with or convicted of any felony or any
crime involving fraud, theft, embezzlement, dishonesty or moral
turpitude;
(b) has been found unsuitable to hold a gaming license; or
(c) in carrying out his duties under this Agreement, has engaged in
acts or omissions constituting gross negligence or willful
misconduct resulting, in either case, in material economic harm
to the Company.
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1.6 "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) (1) any Person, corporation, entity or group (other than the
Existing Equity Holders) is or becomes the beneficial owner,
directly or indirectly, of securities representing 50% or more of
the combined voting power of the Company's Voting Stock (an
"Acquisition Event"), or
(2) the Company consolidates with or merges into another
corporation or entity, or any corporation or entity consolidates
with or merges into the Company, with the effect that the
beneficial owners of the Company's Voting Stock held immediately
prior to the consummation of such consolidation or merger cease
to beneficially own, directly or indirectly, securities
representing 50% or more of the combined voting power of the
Company's Voting Stock (or if the Company is not the surviving
entity, the surviving company's voting securities) upon the
consummation of such consolidation or merger (a "Merger Event"),
or
(3) the Company sells, conveys, transfers or leases to any
person, corporation, entity or group, directly or indirectly, in
one transaction or series of related transactions, properties
and/or assets that accounted for 75% or more of the earnings
(before interest, taxes, depreciation and amortization) of the
Company, on a consolidated basis for the four-fiscal quarter
period immediately preceding the date of consummation of such
transaction (a "Sale Event"); AND
(b) within thirty-six (36) months following an Acquisition Event,
Merger Event or Sale Event, individuals who immediately prior to
such Acquisition Event, Merger Event or Sale Event constituted
the Company's Board, together with any new or replacement
directors whose election by the Company's Board, or whose
nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the directors then
in office who were either directors on the Company's Board
immediately prior to such Acquisition Event, Merger Event or Sale
Event (or whose election or nomination for election was
previously so approved), cease for any reason to constitute a
majority of the directors of the Company's Board then in office.
Notwithstanding the foregoing, a reincorporation, spin-off, split-off or other
reorganization transaction (a "Reorganization Event"), or series of related
transactions, in which either the "beneficial owners" of the Company's Voting
Stock or the Existing Equity Holders beneficially own securities representing
50% or more of the combined voting power of the Company's Voting Stock upon the
consummation of such transaction shall not constitute an Acquisition Event,
Merger Event or Sale Event for purposes of this definition. For purposes of this
definition, "beneficial ownership" shall have the same meaning as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended,
except that a Person shall be
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deemed to have "beneficial ownership" of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time.
For the purposes of this definition, upon consummation of an Acquisition Event,
Merger Event, Sale Event or Reorganization Event, the "Company's Board" and the
"Company's Shareholders" shall refer to (i) in the case of an Acquisition Event,
the Company, (ii) in the case of a Merger Event, the company surviving the
merger or consolidation, (iii) in the case of a Sale Event, the transferee of
the properties, and/or assets, and (iv) in the case of a Reorganization Event,
the entity or entities surviving such Reorganization Event on a consolidated
basis.
1.7 "CODE" shall mean the Internal Revenue Code of 1986, as amended.
1.8 "COMPANY PROPERTY" shall mean all items and materials provided by
the Company to the Executive, or to which the Executive has access, in the
course of his employment, including, without limitation, all files, records,
documents, drawings, specifications, memoranda, notes, reports, manuals,
equipment, computer disks, videotapes, drawings, blueprints and other documents
and similar items relating to the Company, its Affiliates or their respective
customers, whether prepared by the Executive or others, and any and all copies,
abstracts and summaries thereof.
1.9 "COMPETING BUSINESS" shall mean any Person engaged in the gaming
industry that directly or through an affiliate or subsidiary conducts its
business within the Restricted Area.
1.10 "CONFIDENTIAL INFORMATION" shall mean all nonpublic and/or
proprietary information respecting the business of the Company or any Affiliate,
including, without limitation, its products, programs, projects, promotions,
marketing plans and strategies, business plans or practices, business
operations, employees, research and development, intellectual property,
software, databases, trademarks, pricing information and accounting and
financing data. Confidential Information also includes information concerning
the Company's or any Affiliate's customers, such as their identity, address,
preferences, playing patterns and ratings or any other information kept by the
Company or any Affiliate concerning its customers whether or not such
information has been reduced to documentary form. Confidential Information does
not include information that is, or becomes, available to the public unless such
availability occurs through an unauthorized act on the part of the Executive.
1.11 "DEFERRED COMPENSATION PLAN FOR EXECUTIVES" shall mean the
Company's Deferred Compensation Plan for Executives, effective as of November
30, 1994, as the same may be amended from time to time.
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1.12 "DISABILITY" shall mean a physical or mental incapacity that
prevents the Executive from performing the essential functions of his position
with the Company for a period of ninety (90) days as determined (a) in
accordance with any long-term disability plan provided by the Company of which
the Executive is a participant, or (b) by the following procedure: The Executive
agrees to submit to medical examinations by a licensed healthcare professional
selected by the Company, in its sole discretion, to determine whether a
Disability exists. In addition, the Executive may submit to the Company
documentation of a Disability, or lack thereof, from a licensed healthcare
professional of his choice. Following a determination of a Disability or lack of
Disability by the Company's or the Executive's licensed healthcare professional,
the other Party may submit subsequent documentation relating to the existence of
a Disability from a licensed healthcare professional selected by such other
Party. In the event that the medical opinions of such licensed healthcare
professionals conflict, such licensed healthcare professionals shall appoint a
third licensed healthcare professional to examine the Executive, and the opinion
of such third licensed healthcare professional shall be dispositive.
1.13 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.14 "EXISTING EQUITY HOLDERS" shall mean Xxxxx X. Xxxxxxxx III, Xxxxx
X. Xxxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxxxxx and
Xxxxx X Xxxxxxx and their executors, administrators or the legal representatives
of their estates, their heirs, distributees and beneficiaries, and any trust as
to which any of the foregoing is a settlor or co-settlor and any corporation,
partnership or other entity which is an affiliate of any of the foregoing, and
any lineal descendants of such persons (but only to the extent that the
beneficial ownership of the Voting Stock held by such lineal descendants was
directly received by gift, trust or sale from any such person).
1.15 "GOOD REASON," as used in SUBSECTION 7.2, shall mean and exist if
there has been a Change in Control and, thereafter, without the Executive's
prior written consent, one or more of the following events occurs:
(a) the Executive is assigned duties or responsibilities that are
inconsistent, in any significant respect, with the position of a
senior manager;
(b) the Executive is required to relocate from, or maintain his
principal office outside of, Xxxxx County, Nevada;
(c) the Executive's Base Salary is decreased by the Company;
(d) the Executive is excluded from participation in any employee
benefit or short-term incentive plan or program offered to other
similarly executives of the Company or his benefits under such
plans or programs are materially reduced;
(e) the Company fails to pay the Executive any deferred payments that
have become payable under the Deferred Compensation Plan for
Executives;
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(f) the Company fails to reimburse the Executive for business
expenses in accordance with the Company's policies, procedures or
practices;
(g) the Company fails to agree to or to actually indemnify the
Executive for his actions and/or inactions, as either a director
or an officer of the Company, in accordance with SECTION 10,
and/or the Company fails to maintain reasonably sufficient levels
of directors' and officers' liability insurance coverage for the
Executive when such insurance is available; or
(h) the Company fails to obtain a written agreement from any
successor or assign of the Company to assume the obligations
under this Agreement upon a Change in Control.
1.16 "LONG-TERM STAY-ON PERFORMANCE INCENTIVE PLAN" shall mean the
Company's Long-Term Stay-On Performance Incentive Plan, effective as of
August 2, 1999, as the same may be amended from time to time.
1.17 "PERSON" shall mean any individual, firm, partnership,
association, trust, company, corporation or other entity.
1.18 "PRO RATA BONUS" shall mean an amount equal to sixty percent
(60%) of the Executive's current Base Salary, multiplied by a fraction, the
numerator of which is the number of days in such year during which the Executive
was actually employed by the Company and the denominator of which is 365.
1.19 "RESTRICTED AREA" shall mean:
(a) the City of Las Vegas, Nevada, and the area within a twenty-five
(25) mile radius of that city; and
(b) the Cities of Kansas City, Missouri and St. Louis, Missouri, and
the areas within a fifty (50) mile radius of each of those
cities;
PROVIDED, HOWEVER, that in the event the Executive voluntarily terminates this
Agreement pursuant to SUBSECTION 6.3, the Restricted Area shall exclude the Las
Vegas Strip (which is defined as that area bounded by Paradise Road and straight
extensions thereof on the East, Charleston Boulevard on the North, I-15 on the
West, and Sunset Road on the South, as outlined in red on Exhibit A attached
hereto) and Downtown Las Vegas (which is defined as that area bounded by Eastern
Avenue and straight extensions thereof on the East, I-515 (U.S. Highway 93/95)
on the North, I-15 on the West, and Charleston Boulevard on the South, as
outlined in red on Exhibit A attached hereto).
1.20 "RESTRICTION PERIOD" shall mean the period ending twenty-four
(24) months after the termination or expiration of the Term of Employment,
regardless of the reason for such termination or expiration.
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1.21 "SPECIAL LONG-TERM DISABILITY PLAN" shall mean the Company's
Special Long-Term Disability Plan, effective as of November 30, 1994, as the
same may be amended from time to time.
1.22 "SUPPLEMENTAL MANAGEMENT RETIREMENT PLAN" shall mean the
Company's Supplemental Management Retirement Plan, effective as of November 30,
1994, as the same may be amended from time to time.
1.23 "TERM OF EMPLOYMENT" shall mean the period specified in
SUBSECTION 2.2.
1.24 "VOTING STOCK" shall mean capital stock of any class or classes
having general voting power under ordinary circumstances, in the absence of
contingencies, to elect the directors of a corporation.
2. TERM OF EMPLOYMENT, POSITION AND RESPONSIBILITIES.
2.1 EMPLOYMENT ACCEPTED. The Company hereby employs the Executive, and
the Executive hereby accepts employment with the Company, for the Term of
Employment, in the position and with the responsibilities set forth in
SUBSECTION 2.3 and upon such other terms and conditions as are stated in this
Agreement.
2.2 TERM OF EMPLOYMENT. The initial Term of Employment shall commence
upon the date of this Agreement and, unless earlier terminated pursuant to the
provisions of this Agreement, shall terminate upon the close of business on the
day immediately preceding the fifth anniversary of the date of this Agreement;
provided, however, that the initial Term of Employment shall automatically be
extended for successive five-year periods if neither Party has advised the other
in writing in accordance with SECTION 14 at least twelve (12) months prior to
the end of the then current Term of Employment that such Term of Employment will
not be extended for an additional five year period. In the event that such
notice is given, the Executive's employment shall terminate upon the close of
business on the day immediately preceding the fifth anniversary of the then
current Term of Employment.
2.3 RESPONSIBILITIES. During the Term of Employment, the Executive
shall be employed as Executive Vice President of the Company, or in such other
capacity as the Company may direct, and shall have such responsibilities as the
Company may direct from time to time. During the Term of Employment, the
Executive shall devote his full time and attention to the business and affairs
of the Company and shall use his best efforts, skills and abilities to promote
the Company's interests. Anything herein to the contrary notwithstanding, the
Executive shall not be precluded from engaging in charitable and community
affairs and managing his personal investments, including the following outside
interests: serving as a Member of the Board of Directors of Xxxxxxxxx Medical
Center, a Member of the Board of Directors of the YMCA of Southern Nevada, a
Member of the Board of Directors of the Nevada Taxpayers Association, a Member
of the Board of Directors and the Board of Trustees of the Las Vegas Chamber of
Commerce, a Member of the Executive Search Committee of the Nevada
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Development Authority and a Member of the Board of Trustees of the UNLV
Foundation. The Executive also may serve as a member of the board of directors
of other corporations, subject to the approval of a majority of the Board, which
approval shall not be unreasonably withheld or delayed.
3. COMPENSATION.
3.1 BASE SALARY. During the Term of Employment, the Executive shall be
entitled to receive a base salary (the "Base Salary") payable no less frequently
than in equal bi-weekly installments at an annualized rate of no less than
$375,000. The Base Salary shall be reviewed annually for increase (but not
decrease) in the discretion of the Human Resources Committee of the Board. In
conducting any such annual review, the Human Resources Committee shall take into
account any change in the Executive's responsibilities, increases in the
compensation of other executives of the Company or any Affiliate (or any
competitor(s) of either or both), the performance of the Executive and/or other
pertinent factors. Such increased Base Salary shall then constitute the
Executive's "Base Salary" for purposes of this Agreement.
3.2 ANNUAL BONUS. The Company may pay the Executive an annual
discretionary bonus for each fiscal year ending during the Term of Employment in
an amount that will be determined by the Human Resources Committee based on the
Executive's performance. Any annual bonus that may be awarded to the Executive
shall be paid at the same time as annual bonuses are paid to other senior
officers of the Company, unless the Executive has elected to defer receipt of
all or part of the bonus amounts to which he is entitled in respect of any such
calendar year in accordance with the terms and provisions of any deferred
compensation program maintained by the Company.
3.3 STAY-ON INCENTIVES. The Executive shall be eligible to participate
in the Company's Long-Term Stay-On Performance Incentive Plan pursuant to the
terms of the Plan.
3.4 DEFERRED COMPENSATION. The Executive shall be eligible to
participate in the Company's Deferred Compensation Plan for Executives, and any
other deferred compensation plans that the Company may adopt for executives,
pursuant to the terms of the plans.
4. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
4.1 PENSION AND WELFARE BENEFIT PLANS. During the Term of Employment,
the Executive shall be entitled to participate in all employee benefit programs
made available to the Company's executives or salaried employees generally, as
such programs may be in effect from time to time, including, without limitation,
pension and other retirement plans, profit sharing plans, group life insurance,
group health insurance, accidental death and dismemberment insurance, long-term
disability, sick leave (including salary continuation arrangements), vacations,
holidays and other employee benefit programs sponsored by the Company.
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4.2 ADDITIONAL PENSION AND WELFARE BENEFITS. In addition to the
foregoing, the Company shall provide the Executive with the following benefits:
(a) group health insurance coverage through the Company's Exec-U-Care
Medical Plan, effective as of July 1, 1994, or pursuant to such
other plan or plans as the Company may select from time to time,
and which shall be fully paid for by the Company;
(b) full salary continuation during the first 90 days of any physical
or mental incapacity that prevents the Executive from performing
his duties and, for any Disability that continues thereafter,
benefits pursuant to the Company's Special Long-Term Disability
Plan and any other long-term disability benefits pursuant to any
other disability plan of which the Executive is a participant;
(c) an annual supplemental retirement benefit as set forth in the
Supplemental Management Retirement Plan, in addition to any other
benefit pursuant to any other retirement plan under which the
Executive is covered; and
(d) supplemental life insurance coverage, through an individual
policy, a group policy or a combination thereof, in an aggregate
amount of not less than $4.0 million.
5. BUSINESS EXPENSE REIMBURSEMENT AND PERQUISITES.
5.1 EXPENSE REIMBURSEMENT. During the Term of Employment, the
Executive shall be entitled to receive reimbursement by the Company for all
reasonable out-of-pocket expenses incurred by him in performing services under
this Agreement, subject to providing the proper documentation of said expenses.
5.2 PERQUISITES. During the Term of Employment, the Executive shall
also be entitled to any of the Company's executive perquisites in accordance
with the terms and provisions of the applicable policies, including, without
limitation:
(a) vacation of four weeks per year;
(b) payment or reimbursement of the cost of an annual physical
examination;
(c) payment or reimbursement of initiation fees and annual membership
fees and assessments for a country club, a luncheon club and a
physical fitness program of the Executive's choice; and
(d) payment or reimbursement of fees and expenses, up to a maximum
amount of $2500.00, incurred in connection with having this
Agreement reviewed by legal counsel of his own choosing prior to
execution.
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6. TERMINATION OF EMPLOYMENT.
6.1 TERMINATION DUE TO DEATH OR DISABILITY. The Executive's employment
shall be terminated immediately in the event of his death or Disability. In the
event of a termination due to the Executive's death or Disability, the Executive
or his estate, as the case may be, shall be entitled, in lieu of any other
compensation whatsoever, to:
(a) Base Salary at the rate in effect at the time of his termination
until the date of death or Disability;
(b) any annual bonus awarded but not yet paid;
(c) a Pro Rata Bonus for the fiscal year in which death or Disability
occurs;
(d) in the case of death, any deferred compensation or bonuses,
including interest or other credits on the deferred amounts, to
the extent provided in the plans or programs providing for
deferral, and in the case of Disability, immediate vesting of any
deferred compensation or bonuses, including interest or other
credits on the deferred amounts;
(e) reimbursement of expenses incurred but not paid prior to such
termination of employment; and
(f) such rights to other benefits as may be provided in applicable
plans and programs of the Company, including, without limitation,
applicable employee benefit plans and programs, according to the
terms and provisions of such plans and programs.
6.2 TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
the Executive's employment for Cause at any time during the Term of Employment
by giving written notice to the Executive. In the event of a termination for
Cause, the Executive shall be entitled, in lieu of any other compensation and
benefits whatsoever, to:
(a) Base Salary at the rate in effect at the time of his termination
through the date of termination of employment;
(b) any annual bonus awarded but not yet paid;
(c) any deferred compensation or bonuses, including interest or other
credits on the deferred amounts, to the extent provided in the
plans or programs providing for deferral;
(d) reimbursement for expenses incurred but not paid prior to such
termination of employment; and
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(e) such rights to other benefits as may be provided in applicable
plans and programs of the Company, including, without limitation,
applicable employee benefit plans and programs, according to the
terms and conditions of such plans and programs.
Notwithstanding anything to the contrary in this SUBSECTION 6.2, if the
Executive's employment is terminated for Cause (i) due to his having been
formally charged pursuant to SUBSECTION 1.5(a) but thereafter said charges are
dismissed or the Executive is acquitted, or (ii) due to his having been
convicted pursuant to SUBSECTION 1.5(a) but said conviction is subsequently
overturned on appeal and he is not required to submit to re-trial within six (6)
months thereafter, the Company shall have the option of reinstating the
Executive with payment of all base salary payments that would have been paid to
him had his employment not been terminated and restoration of all benefits
provided for pursuant to SECTION 4, or making a payment to him of an amount
equal to three times 160 percent of the Executive's Base Salary at the rate in
effect at the time of his termination.
6.3 TERMINATION BY THE EXECUTIVE. The Executive may terminate his
employment on his own initiative for any reason prior to a Change in Control
upon thirty (30) days prior written notice to the Company. Such termination
shall have the same consequences as a termination for Cause under SUBSECTION
6.2.
6.4 TERMINATION BY THE COMPANY WITHOUT CAUSE. Notwithstanding any
other provision of this Agreement, the Company may terminate the Executive's
employment without Cause, other than due to death or Disability, at any time
during the Term of Employment by giving written notice to the Executive. In the
event that the Company terminates the Executive's employment without Cause, the
Executive shall be entitled, in lieu of any other compensation and benefits
whatsoever, to:
(a) an amount equal to three times 160 percent of the Executive's
Base Salary at the rate in effect at the time of his termination,
one-third of which shall be paid in a lump sum upon satisfaction
of the conditions set forth in SUBSECTION 8.3, and the other
two-thirds of which shall be paid out in equal bi-weekly
installments for the duration of the Restriction Period;
(b) any annual bonus awarded but not yet paid;
(c) any deferred bonus, including interest or other credits on the
deferred amounts, to the extent provided in the plans or programs
providing for deferral;
(d) exercise, within 180 days, all stock options that have vested
prior to termination, and shall forfeit all stock options that
have not vested;
(e) reimbursement for expenses incurred but not paid prior to such
termination of employment; and
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(f) continuation of the Executive's medical insurance, at the
Company's expense, for 18 months or, at the Company's option,
payment to the Executive of the economic equivalent thereof.
6.5 TERMINATION DUE TO EXPIRATION OF THE TERM OF EMPLOYMENT. If either
Party elects not to extend the initial Term of Employment or any successive Term
of Employment, the Executive shall not be entitled to any additional
compensation after the expiration thereof, but such termination of employment
shall not otherwise affect accrued but unpaid compensation or benefits provided
under this Agreement or pursuant to any Company plan or program.
7. CHANGE IN CONTROL.
7.1 CHANGE IN CONTROL PAYMENT. Immediately upon a Change in Control,
in addition to any other compensation or benefits payable pursuant to this
Agreement or otherwise, the Executive shall be entitled to a payment in cash
equal to three times 160 percent of his Base Salary. Unless otherwise provided
for in this Agreement, the Executive's rights upon a Change in Control to
benefits under programs, plans and policies of the Company shall be determined
according to the terms and provisions of such programs, plans and policies.
7.2 TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR
GOOD REASON AFTER A CHANGE IN CONTROL. If within five years following a Change
in Control, the Executive's employment is terminated by the Company without
Cause or by the Executive for Good Reason, the Executive shall be entitled, in
addition to any payment paid or payable pursuant to SUBSECTION 7.1, but in lieu
of any other compensation and benefits whatsoever, to:
(a) an amount equal to the greater of (i) five times 160 percent of
the Executive's Base Salary at the time of the Change in Control
or (ii) five times 160 percent of the Executive's Base Salary at
the time of the termination of his employment, three-fifths of
which shall be paid in a lump sum upon satisfaction of the
conditions set forth in SUBSECTION 8.3 and two-fifths of which
shall be paid out in equal bi-weekly installments for the
duration of the Restriction Period,
(b) immediate vesting of any restricted stock of the Company held in
the Executive's name or for his benefit;
(c) immediate vesting of any stock options and stock appreciation
rights granted by the Company, which stock options and stock
appreciation rights shall continue to be and shall remain
exercisable until the earlier of (i) five years and (ii) the
remaining term of such stock options and stock appreciation
rights as set forth in the agreement granting, or otherwise
awarding, such stock option or stock appreciation right as if no
termination had taken place;
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(d) immediate vesting and cash-out of any phantom stock units granted
to the Executive;
(e) immediate vesting and pay out of any shares awarded to the
Executive pursuant to the Company's Long-Term Stay-On Performance
Incentive Plan;
(f) immediate vesting of the Executive's supplemental retirement
benefit as set forth in the Supplemental Management Retirement
Plan;
(g) continued funding of the Executive's split dollar life insurance
policy as if the Executive were employed by the Company through
the maturity date of such policy or, at the Company's option,
payment in full of all premium obligations under such policy; and
(h) continuation of the Executive's medical insurance, at the
Company's expense, for 18 months or, at the Company's option,
payment to the Executive of the economic equivalent thereof.
7.3 TERMINATION BY EXECUTIVE WITHOUT GOOD REASON AFTER A CHANGE IN
CONTROL. If the Executive terminates his employment without Good Reason within
ninety (90) days following the first anniversary of a Change in Control, the
Executive shall be entitled, in addition to any payment paid or payable pursuant
to SUBSECTION 7.1, but in lieu of any other compensation and benefits
whatsoever, to:
(a) an amount equal to the greater of (i) three times 160 percent of
the Executive's Base Salary at the time of the Change in Control
or (ii) three times 160 percent of the Executive's Base Salary at
the time of the termination of his employment, one-third of which
shall be paid in a lump sum upon satisfaction of the conditions
set forth in SUBSECTION 8.3 and two-thirds of which shall be paid
out in equal bi-weekly installments for the duration of the
Restriction Period;
(b) immediate vesting of any stock options and stock appreciation
rights granted by the Company, which stock options and stock
appreciation rights shall continue to be and shall remain
exercisable until the earlier of (i) three years and (ii) the
remaining term of such stock options and stock appreciation
rights as set forth in the agreement granting, or otherwise
awarding, such stock option or stock appreciation right as if no
termination had taken place;
(c) immediate vesting and cash-out of any phantom stock units granted
to the Executive;
(d) immediate vesting of the Executive's supplemental retirement
benefit as set forth in the Supplemental Management Retirement
Plan;
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(e) continued funding of the Executive's split dollar life insurance
policy as if the Executive were employed by the Company through
the maturity date of such policy or, at the Company's option,
payment in full of all premium obligations under such policy; and
(f) continuation of the Executive's medical insurance, at the
Company's expense, for 18 months or, at the Company's option,
payment to the Executive of the economic equivalent thereof.
7.4 TERMINATION FOR OTHER REASONS AFTER A CHANGE IN CONTROL. If the
Executive's employment is terminated after a Change in Control for any reason
not otherwise provided for in this SECTION 7, his rights shall be determined in
accordance with the applicable SUBSECTION of SECTION 6.
8. CONDITIONS TO PAYMENTS UPON TERMINATION.
8.1 TIMING OF PAYMENTS. Unless otherwise provided herein, any payments
to which the Executive shall be entitled pursuant to SECTIONS 6 and 7 shall be
payable upon the satisfaction of the conditions set forth in SUBSECTION 8.3.
8.2 NO MITIGATION; NO OFFSET. In the event of any termination of the
Executive's employment under SECTIONS 6 OR 7, the Executive shall be under no
obligation to seek other employment and there shall be no offset against amounts
due to the Executive on account of any remuneration attributable to any
subsequent employment that the Executive may obtain. Notwithstanding any
contrary provision contained herein, in the event of any termination of
employment of the Executive, the exclusive remedies available to the Executive
shall be the amounts due under SECTIONS 6 OR 7, which are in the nature of
severance payments, or liquidated damages, or both, and are not in the nature of
a penalty. In the event of a termination of this Agreement, neither Party shall
publish in any way or make any negative comment or statement about the other
Party or concerning the reasons for such termination. The provisions of this
SUBSECTION 8.2 shall survive the expiration or earlier termination of this
Agreement.
8.3 GENERAL RELEASE. No payments or benefits payable to the Executive
upon the termination of his employment pursuant to SECTIONS 6 OR 7 shall be made
to the Executive unless and until he executes a general release substantially in
the form annexed to this Agreement as Exhibit B and such general release becomes
effective pursuant to its terms.
8.4 COMPLIANCE WITH THE AGREEMENT. No payments or benefits payable to
the Executive upon the termination of his employment pursuant to SECTIONS 6 OR 7
shall be made to the Executive if he fails to comply with all of the terms and
conditions of this Agreement, including, without limitation, SECTIONS 11 AND 12.
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8.5 CONTINUING OBLIGATIONS OF EXECUTIVE. No act or omission by the
Executive in breach of this Agreement, including, without limitation his failure
to execute the general release and the resulting forfeiture of termination
payments, shall be deemed to permit the Executive to forego or waive such
payments in order to avoid his obligations under SECTION 11.
9. SPECIAL REIMBURSEMENT.
9.1 If any payment or benefit paid or payable, or received or to be
received, by or on behalf of the Executive in connection with a Change in
Control pursuant to SUBSECTION 7.1 or the termination of the Executive's
employment pursuant to SUBSECTION 7.2 , whether any such payments or benefits
are pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company, any Affiliate, any Person, or otherwise (the "TOTAL
PAYMENTS"), will or would be subject to the excise tax imposed under SECTION
4999 of the Code (the "EXCISE TAX"), the Company shall pay to the Executive an
additional amount (the "GROSS-UP PAYMENT") such that, after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes) imposed upon or in respect of the Total Payments and the Gross-Up
Payments, including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and any Excise Tax imposed thereon, the
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments.
9.2 For purposes of determining whether any of the Total Payments will
be subject to the Excise Tax and the amount of such Excise Tax,
(a) the Total Payments shall be treated as "parachute payments"
within the meaning of SECTION 280G(b)(2) of the Code, and all
"excess parachute payments" within the meaning of SECTION
280G(b)(1) of the Code shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel selected by the Company
and reasonably acceptable to the Executive (which opinion shall
be provided to the Executive) such Total Payments (in whole or in
part) (i) do not constitute parachute payments, including
(without limitation) by reason of SECTION 280G(b)(4)(A) of the
Code, (ii) such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered,
within the meaning of SECTION 280G(b)(4)(B) of the Code, or (iii)
are not, in the opinion of legal counsel, otherwise subject to
the Excise Tax, and
(b) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Company's independent auditors
in accordance with the principles of SECTIONS 280G(d)(3) and (4)
of the Code.
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9.3 In the event that the Excise Tax is subsequently determined to be
less than the amount taken into account hereunder, the Executive shall repay to
the Company, at the time that the amount of such reduction in Excise Tax is
finally determined, the portion of the Gross-Up Payment attributable to such
reduction plus interest on the amount of such repayment at the rate provided in
SECTION 1274(b)(2)(B) of the Code. In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder at the time of the
termination of the Executive's employment (including by reason of any payment
the existence or amount of which cannot be determined at the time of the initial
Gross-Up Payment), the Company shall make an additional Gross-Up Payment in
accordance with SUBSECTION 9.1 in respect of such excess Excise Tax (plus any
interest, penalties or additions payable by the Executive with respect to such
excess Excise Tax) at the time that the amount of such excess Excise Tax is
finally determined. The Executive and the Company shall each reasonably
cooperate with each other in connection with any administrative or judicial
proceedings concerning the existence or amount of any such subsequent liability
for Excise Tax with respect to the Total Payments.
10. INDEMNIFICATION.
10.1 GENERAL. The Company agrees that if the Executive is made a party
or is threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative (an "INDEMNIFIABLE ACTION"), by
reason of the fact that he is or was a director or officer of the Company or is
or was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Indemnifiable Action is alleged action
in an official capacity as a director, officer, member, employee or agent, while
serving as a director, officer, member, employee or agent, he shall be
indemnified and held harmless by the Company to the fullest extent permitted by
Nevada law and the Company's by-laws, as the same exist or may hereafter be
amended, against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by the Executive in connection
therewith.
10.2 PROCEDURE. The indemnification provided pursuant to this SECTION
10 shall be subject to the following conditions:
(a) The Executive must promptly give the Company written notice of
any actual or threatened Indemnifiable Action;
(b) The Company will be permitted, at its option, to participate in,
or to assume, the defense of any Indemnifiable Action;
(c) The Executive must provide reasonable cooperation to the Company
in the defense of any Indemnifiable Action; and
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(d) The Executive must refrain from settling any Indemnifiable Action
without obtaining the Company's prior written consent, which
consent shall not be unreasonably withheld.
10.3 ADVANCEMENT OF COSTS AND EXPENSES. The Company agrees to advance
all costs and expenses referred to in SUBSECTION 10.1; provided, however, that
the Executive agrees to repay to the Company all amounts so advanced in the
event that the Company reasonably determines in good faith that any acts or
omissions by the Executive were:
(a) in knowing violation of any agreement between the Executive and
the Company;
(b) in bad faith or involving intentional misconduct or a knowing
violation of law or that the Executive personally gained a
financial profit or other advantage to which he was not legally
entitled; or
(c) for which a court, having jurisdiction in the matter, determines
that indemnification is not lawful.
10.4 NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending an Indemnifiable Action in advance of
its final disposition conferred in this SECTION 10 shall not be exclusive of any
other right which the Executive may have or hereafter may acquire under any
statute, provision of the certificate of incorporation or by-laws of the
Company, agreement, vote of stockholders or disinterested directors or
otherwise.
10.5 D&O INSURANCE. The Company will maintain a directors' and
officers' liability insurance policy covering the Executive that provides
coverage that is reasonable in relation to the Executive's position during the
Term of Employment.
11. COVENANT NOT ENGAGE IN CERTAIN ACTS.
11.1 GENERAL. The Parties understand and agree that the purpose of the
restrictions contained in this SECTION 11 is to protect the goodwill and other
legitimate business interests of the Company, and that the Company would not
have entered into this Agreement in the absence of such restrictions. The
Executive acknowledges and agrees that the restrictions are reasonable and do
not, and will not, unduly impair his ability to make a living after the
termination of his employment with the Company. The provisions of this SECTION
11 shall survive the expiration or sooner termination of this Agreement.
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11.2 NON-ASSISTANCE; NON-DIVERSION. In consideration for this
Agreement to employ the Executive and the other valuable consideration provided
hereunder, the Executive agrees and covenants that during the Term of Employment
and during the Restriction Period, and except when acting on behalf of the
Company or on behalf of any Affiliate, the Executive shall not, directly or
indirectly, for himself or any third party, or alone or as a member of a
partnership, or as an officer, director, shareholder or otherwise, engage in the
following acts:
(a) divert or attempt to divert any existing business of the Company
or any Affiliate;
(b) accept any position or affiliation with, or render any services
on behalf of, any Competing Business; or
(c) hire or retain any employee of the Company or any Affiliate to
provide services for any other Person or induce, solicit, attempt
to solicit, encourage, divert, cause or attempt to cause any
employee or prospective employee of the Company or any Affiliate
to (i) terminate and/or leave such employment, or (ii) accept
employment with anyone other than the Company or an Affiliate.
11.3 CESSATION/REIMBURSEMENT OF PAYMENTS. If the Executive violates
any provision of this SECTION 11, the Company may, upon giving written notice to
the Executive, immediately cease all payments and benefits that it may be
providing to the Executive pursuant to SECTION 3, SECTION 6 or SUBSECTION 7.2,
and the Executive may be required to reimburse the Company for any payments
received from, and the cash value of any benefits provided by, the Company
between the first day of the violation and the date such notice is given;
provided, however, that the foregoing shall be in addition to such other
remedies as may be available to the Company and shall not be deemed to permit
the Executive to forego or waive such payments in order to avoid his obligations
under this SECTION 11.
11.4 SURVIVAL. The Executive agrees that the provisions of this
SECTION 11 shall survive the termination of this Agreement and the termination
of the Executive's employment.
12. CONFIDENTIAL INFORMATION AND COMPANY PROPERTY.
12.1 CONFIDENTIAL INFORMATION. The Executive understands and
acknowledges that Confidential Information constitutes a valuable asset of the
Company and its Affiliates and may not be converted to the Executive's own or
any third party's use. Accordingly, the Executive hereby agrees that he shall
not directly or indirectly, during the Term of Employment or any time
thereafter, disclose any Confidential Information to any Person not expressly
authorized by the Company to receive such Confidential Information. The
Executive further agrees that he shall not directly or indirectly, during the
Term of Employment or any time thereafter, use or make use of any Confidential
Information in connection with any business activity other than that of the
Company. The Parties acknowledge and agree that this Agreement
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is not intended to, and does not, alter either the Company's rights or the
Executive's obligations under any state or federal statutory or common law
regarding trade secrets and unfair trade practices.
12.2 COMPANY PROPERTY. All Company Property is and shall remain
exclusively the property of the Company. Unless authorized in writing to the
contrary, the Executive shall promptly, and without charge, deliver to the
Company on the termination of employment hereunder, or at any other time the
Company may so request, all Company Property that the Executive may then possess
or have under his control.
12.3 REQUIRED DISCLOSURE. In the event the Executive is required by
law or court order to disclose any Confidential Information or to produce any
Company Property, the Executive shall promptly notify the Company of such
requirement and provide the Company with a copy of any court order or of any law
which requires such disclosure and, if the Company so elects, to the extent
permitted by applicable law, give the Company an adequate opportunity, at its
own expense, to contest such law or court order prior to any such required
disclosure or production by the Executive.
12.4 SURVIVAL. The Executive agrees that the provisions of this
SECTION 12 shall survive the termination of this Agreement and the termination
of the Executive's employment.
13. MUTUAL ARBITRATION AGREEMENT.
13.1 ARBITRABLE CLAIMS. All disputes between the Executive (and his
attorneys, successors, and assigns) and the Company (and its trustees,
beneficiaries, officers, directors, managers, affiliates, employees, agents,
successors, attorneys, and assigns) relating in any manner whatsoever to the
employment or termination of the Executive, including, without limitation, all
disputes arising under this Agreement ("ARBITRABLE CLAIMS"), shall be resolved
by binding arbitration as set forth in this SECTION 13 (the "MUTUAL ARBITRATION
AGREEMENT"). Arbitrable Claims shall include, but are not limited to, claims for
compensation, claims for breach of any contract or covenant (express or
implied), and tort claims of all kinds, as well as all claims based on any
federal, state, or local law, statute or regulation, but shall not include the
claims based on the statutes enumerated in SUBSECTION 13.4 or the Company's
right to seek injunctive relief as provided in SECTION 15. Arbitration shall be
final and binding upon the Parties and shall be the exclusive remedy for all
Arbitrable Claims. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY
JUDGE OR JURY IN REGARD TO ARBITRABLE CLAIMS, EXCEPT AS PROVIDED BY SECTION
13.4.
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13.2 PROCEDURE. Arbitration of Arbitrable Claims shall be in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association, as amended, and as augmented in this
Agreement. Either Party may bring an action in court to compel arbitration under
this Agreement and to enforce an arbitration award. Otherwise, neither Party
shall initiate or prosecute any lawsuit, appeal or administrative action in any
way related to an Arbitrable Claim. The initiating Party must file and serve an
arbitration claim within sixty (60) days of learning the facts giving rise to
the alleged claim. All arbitration hearings under this Agreement shall be
conducted in Las Vegas, Nevada. The Federal Arbitration Act shall govern the
interpretation and enforcement of this Agreement. The fees of the arbitrator
shall be divided equally between both Parties.
13.3 CONFIDENTIALITY. All proceedings and all documents prepared in
connection with any Arbitrable Claim shall be confidential and, unless otherwise
required by law, the subject matter and content thereof shall not be disclosed
to any Person other than the parties to the proceedings, their counsel,
witnesses and experts, the arbitrator and, if involved, the court and court
staff.
13.4 APPLICABILITY. This SECTION 13 shall apply to all disputes under
this Agreement other than:
(a) disputes relating to the enforcement of the Company's rights
under SECTIONS 11 AND 12 of this Agreement; and
(b) claims brought under Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1866, the Age Discrimination in
Employment Act of 1967 (including the Older Workers Benefit
Protection Act), and the Americans with Disabilities Act, the
Fair Labor Standards Act, the Equal Pay Act, the Family and
Medical Leave Act and the Employee Retirement Income Security Act
of 1974, the Nevada Fair Employment Practices Act, the Missouri
Human Rights Act or any other applicable state or local fair
employment law.
13.5 ACKNOWLEDGEMENTS. The Executive acknowledges that he:
(a) has carefully read this SECTION 13;
(b) understands its terms and conditions; and
(c) has entered into this Mutual Arbitration Agreement voluntarily
and not in reliance on any promises or representations made by
the Company other than those contained in this Mutual Arbitration
Agreement.
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14. NOTICES. All notices, demands and requests required or permitted to be
given to either Party under this Agreement shall be in writing and shall be
deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address as
such Party may subsequently give notice of:
If to the Company: Station Casinos, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx X Xxxxxxx
With a copy to: Milbank, Tweed, Xxxxxx & XxXxxx
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
If to the Executive: Xxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
15. RIGHT TO SEEK INJUNCTIVE RELIEF. The Executive acknowledges that a
violation on his part of any of the covenants contained in SECTIONS 11 AND 12
would cause immeasurable and irreparable damage to the Company. The Executive
accordingly agrees and hereby grants his consent that, without limiting the
remedies available to the Company, any actual or threatened violation of such
covenants may be enforced by injunctive relief or by other equitable remedies
issued or ordered by any court of competent jurisdiction.
16. EMPLOYEE BENEFIT PLAN DOCUMENTS. In the event that any terms and
provisions of this Agreement conflict with the terms and provisions of any
employee benefit plan document, the terms and provisions of this Agreement shall
govern, and the Company shall take any and all actions that may be necessary,
including amendment of any plan document, to effect the provision of benefits
expressly provided upon termination of the Executive's employment pursuant to
SECTIONS 6 and 7.
17. BENEFICIARIES/REFERENCES. The Executive shall be entitled to select a
beneficiary or beneficiaries to receive any compensation or benefit payable
hereunder following the Executive's death, and may change such election, by
giving the Company written notice thereof. In the event of the Executive's death
or a judicial determination of his incompetence, reference in this Agreement to
the Executive shall be deemed, where appropriate, to refer to his beneficiaries,
estate or other legal representative.
18. SURVIVORSHIP. The respective rights and obligations of the Parties
hereunder shall survive the expiration or earlier termination of this Agreement
to the extent necessary to the intended preservation of such rights and
obligations. The provisions of this SECTION 18 are in addition to the
survivorship provisions of any other section of this Agreement.
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19. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that
he or it is fully authorized and empowered to enter into this Agreement and that
the performance of his or its obligations under this Agreement will not violate
any Agreement between that Party and any other Person.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, express or implied, between the Parties with respect hereto. No
representations, inducements, promises or agreements not embodied herein shall
be of any force or effect.
21. ASSIGNABILITY; BINDING NATURE. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors, heirs and
assigns; PROVIDED, HOWEVER, that no rights or obligations of the Executive under
this Agreement may be assigned or transferred by the Executive, other than
rights to compensation and benefits hereunder, which may be transferred only by
will or operation of law and subject to the limitations of this Agreement; and
PROVIDED, FURTHER, that no rights or obligations of the Company under this
Agreement may be assigned or transferred by the Company, except that such rights
or obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Company is not the continuing entity, or the sale or
liquidation of all or substantially all of the assets of the Company, provided
that the assignee or transferee is the successor to all or substantially all of
the assets of the Company and such assignee or transferee assumes the
liabilities, obligations and duties of the Company under this Agreement, either
contractually or as a matter of law.
22. AMENDMENT OR WAIVER. No provision in this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing, signed by both
Parties. No waiver by one Party of any breach by the other Party of any
condition or provision of this Agreement to be performed by such other Party
shall be deemed a waiver of a similar or dissimilar condition or provision at
the same or any prior or subsequent time. No failure of the Company to exercise
any power given it hereunder or to insist upon strict compliance by the
Executive with any obligation hereunder, and no custom or practice at variance
with the terms hereof, shall constitute a waiver of the right of the Company to
demand strict compliance with the terms hereof.
23. SEVERABILITY. In the event that any provision or portion of this
Agreement, except SECTION 6, SECTION 7 and SECTION 11, shall be determined to be
invalid or unenforceable for any reason, in whole or in part, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by law. If either SECTION
6, SECTION 7 or SECTION 11 is determined to be invalid or unenforceable for any
reason, in whole or in part, either Party may terminate this Agreement without
further obligations or duties hereunder.
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24. GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Nevada without reference
to the principles of conflict of laws thereof. In the event of any dispute or
controversy arising out of or relating to this Agreement that is not an
arbitrable claim, the Parties mutually and irrevocably consent to, and waive any
objection to, the exclusive jurisdiction of any court of competent jurisdiction
in Xxxxx County, Nevada, to resolve such dispute or controversy.
25. HEADINGS. The headings of the sections and SUBSECTIONs contained in
this agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same Agreement with the same effect as if all Parties had signed the same
signature page. Any signature page of this Agreement may be detached from any
counterpart of this Agreement and reattached to any other counterpart of this
Agreement identical in form hereto but having attached to it one or more
additional signature pages.
27. ACKNOWLEDGEMENT. The Executive represents and acknowledges the
following:
(a) he has carefully read this Agreement in its entirety;
(b) he understands the terms and conditions contained herein;
(c) he has had the opportunity to review this Agreement with legal
counsel of his own choosing and has not relied on any statements
made by the Company or its legal counsel as to the meaning of any
term or condition contained herein or in deciding whether to
enter into this Agreement; and
(d) he is entering into this Agreement knowingly and voluntarily.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
STATION CASINOS, INC.
By: /s/ XXXXX X. XXXXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President, Chief
Financial Officer, Chief
Administrative Officer and
Treasurer
/s/ XXXX X. XXXXX
---------------------------
Xxxx X. Xxxxx
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EXHIBIT "B"
GENERAL RELEASE AND COVENANT NOT TO XXX
This GENERAL RELEASE AND COVENANT NOT TO XXX (this "Release") is
executed and delivered by XXXX X. XXXXX (the "Executive") to STATION CASINOS,
INC., a Nevada corporation (the "Company").
In consideration of the agreement by the Company to provide the
separation payments and benefits in SECTION 6 and SECTION 7 of the Employment
Agreement between the Executive and the Company, dated as of August 2, 1999 (the
"Employment Agreement"), and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Executive hereby
agrees as follows:
1. RELEASE AND COVENANT. THE EXECUTIVE, OF HIS OWN FREE WILL,
VOLUNTARILY RELEASES AND FOREVER DISCHARGES THE COMPANY AND ITS SUBSIDIARIES AND
AFFILIATES, AND EACH OF THEIR RESPECTIVE PAST AND PRESENT AGENTS, EMPLOYEES,
MANAGERS, REPRESENTATIVES, OFFICERS, DIRECTORS, ATTORNEYS, ACCOUNTANTS,
TRUSTEES, SHAREHOLDERS, PARTNERS, INSURERS, HEIRS, PREDECESSORS-IN-INTEREST,
ADVISORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASED PARTIES") FROM,
AND COVENANTS NOT TO XXX OR PROCEED AGAINST ANY OF THE FOREGOING ON THE BASIS
OF, ANY AND ALL PAST OR PRESENT CAUSES OF ACTION, SUITS, AGREEMENTS OR OTHER
RIGHTS OR CLAIMS WHICH THE EXECUTIVE, HIS DEPENDENTS, RELATIVES, HEIRS,
EXECUTORS, ADMINISTRATORS, SUCCESSORS AND ASSIGNS HAS OR HAVE AGAINST ANY OF THE
RELEASED PARTIES UPON OR BY REASON OF ANY MATTER ARISING OUT OF HIS EMPLOYMENT
BY THE COMPANY AND THE CESSATION OF SAID EMPLOYMENT, AND INCLUDING, BUT NOT
LIMITED TO, ANY ALLEGED VIOLATION OF THE CIVIL RIGHTS ACTS OF 1964 AND 1991, THE
EQUAL PAY ACT OF 1963, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967
(INCLUDING THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990), THE REHABILITATION
ACT OF 1973, THE FAMILY AND MEDICAL LEAVE ACT OF 1993, THE AMERICANS WITH
DISABILITIES ACT OF 1990, THE EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF 1974,
THE NEVADA FAIR EMPLOYMENT PRACTICES ACT, THE MISSOURI HUMAN RIGHTS ACT, THE
LABOR LAWS OF THE UNITED STATES, NEVADA AND MISSOURI, AND ANY OTHER FEDERAL,
STATE OR LOCAL LAW, REGULATION OR ORDINANCE, OR PUBLIC POLICY, CONTRACT OR TORT
LAW, HAVING ANY BEARING WHATSOEVER ON THE TERMS AND CONDITIONS OR CESSATION OF
HIS EMPLOYMENT WITH THE COMPANY.
2. DUE CARE. THE EXECUTIVE ACKNOWLEDGES THAT HE HAS RECEIVED A COPY OF
THIS RELEASE PRIOR TO ITS EXECUTION AND HAS BEEN ADVISED HEREBY OF HIS
OPPORTUNITY TO REVIEW AND CONSIDER THIS RELEASE FOR TWENTY-ONE (21) DAYS PRIOR
TO ITS EXECUTION. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT HE HAS BEEN ADVISED
HEREBY TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS RELEASE. THE
EXECUTIVE ENTERS INTO THIS RELEASE HAVING FREELY AND KNOWINGLY ELECTED, AFTER
DUE CONSIDERATION, TO EXECUTE THIS RELEASE AND TO FULFILL THE PROMISES SET FORTH
HEREIN. THIS RELEASE SHALL BE REVOCABLE BY THE EXECUTIVE DURING THE SEVEN (7)
DAY PERIOD FOLLOWING ITS EXECUTION, AND SHALL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL THE EXPIRATION OF SUCH SEVEN (7) DAY PERIOD. IN THE EVENT OF
SUCH A REVOCATION, THE EXECUTIVE SHALL NOT BE ENTITLED TO THE CONSIDERATION FOR
THIS RELEASE SET FORTH ABOVE.
3. RELIANCE BY THE EXECUTIVE. THE EXECUTIVE ACKNOWLEDGES THAT, IN HIS
DECISION TO ENTER INTO THIS RELEASE, HE HAS NOT RELIED ON ANY REPRESENTATIONS,
PROMISES OR ARRANGEMENT OF ANY KIND, INCLUDING ORAL STATEMENTS BY
REPRESENTATIVES OF THE COMPANY, EXCEPT AS SET FORTH IN THIS RELEASE.
4. MISCELLANEOUS. THE EXECUTIVE SHALL NOT DISCLOSE THE EXISTENCE OR
CONTENTS OF THIS RELEASE TO ANYONE OTHER THAN HIS IMMEDIATE FAMILY, ACCOUNTANTS
OR ATTORNEYS, AND THE EXECUTIVE SHALL INSTRUCT SUCH THIRD PARTIES NOT TO
DISCLOSE THE SAME. THIS RELEASE SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA WITHOUT REFERENCE
TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. IF ANY PROVISION OF THIS RELEASE
IS HELD INVALID OR UNENFORCEABLE FOR ANY REASON, THE REMAINING PROVISIONS SHALL
BE CONSTRUED AS IF THE INVALID OR UNENFORCEABLE PROVISION HAD NOT BEEN INCLUDED.
ii
This GENERAL RELEASE AND COVENANT NOT TO XXX is executed by the
Executive and delivered to the Company on ____________________________.
Executive
------------------------------
Name: Xxxx X. Xxxxx
STATE OF )
-------------------------- ) ss:
COUNTY OF )
-------------------------
On this _____ day of ________________, ____, before me, a Notary
Public of the State of _______________, personally appeared ____________, to me
known and known to me to be the person described and who executed the foregoing
release and did then and there acknowledge to me that he voluntarily executed
the same.
-----------------------------
NOTARY PUBLIC
[NOT TO BE SIGNED OR NOTARIZED UPON EXECUTION OF EMPLOYMENT AGREEMENT]
iii
