EXHIBIT 10.1(d)
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered
into as of the 13th day of March 2002, by and between AMERISTAR CASINOS, INC., a
Nevada corporation, with its principal offices located at 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 000X, Xxx Xxxxx, Xxxxxx 00000 (the "COMPANY"), and XXXXX X. XXXXX
(the "EXECUTIVE").
RECITALS
WHEREAS, the Company conducts a business in the gaming industry, including
the operation of casinos, hotels, restaurants and other similar amenities, and
the Executive has substantial expertise and experience in the gaming industry
and as an attorney who is a member in good standing of the Nevada State Bar; and
WHEREAS, the Company desires to hire the Executive, and the Executive has
agreed to enter into employment with the Company on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the promises 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:
TERMS AND CONDITIONS
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 that directly, or indirectly
through one or more intermediaries, controls or is controlled by or is
under common control with the Person specified. For purposes of this
definition, control of a Person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise and, in any event and without limitation
of the previous sentence, any Person owning ten percent (10%) or more of
the voting securities of another Person shall be deemed to control that
Person.
1.2 "BASE SALARY" shall mean the salary provided for in Section 3.1 of
this Agreement.
1.3 "BOARD" shall mean the Board of Directors of the Company.
1.4 "CAUSE" shall mean that the Executive:
(a) has been formally charged with or convicted of a felony or
any crime involving fraud, theft, embezzlement, dishonesty or moral
turpitude;
-1-
(b) has participated in fraud, embezzlement, or other act of
dishonesty involving the Company;
(c) has been found unsuitable to hold a gaming license or has
failed in a timely manner to seek or obtain any finding of suitability
or other approval by any gaming regulatory authority whose license,
finding of suitability or other approval is legally required as a
condition of the Executive's performance of his or her duties and
responsibilities under this Agreement;
(d) has failed to fulfill or maintain all suitability and
character requirements for continued employment by the Company as from
time to time may be imposed pursuant to the Company's Gaming
Compliance Program, written Company policies or gaming laws,
regulations or orders applicable to the Company or one of its
Affiliates or has failed to maintain all necessary professional
licenses to serve as General Counsel of the Company;
(e) in carrying out his or her duties under this Agreement, has
engaged in acts or omissions constituting gross negligence or willful
misconduct resulting in, or which, in the good faith opinion of the
Company could be expected to result in, material economic harm to the
Company;
(f) has failed for any reason, within ten (10) days of receipt by
the Executive of written notice thereof from Company, to correct,
cease or alter any action or omission that (i) in the good faith
opinion of the Company does or may materially and adversely affect its
business or operations, (ii) violates or does not conform with the
Company's policies, standards or regulations, or (iii) constitutes a
material breach of this Agreement;
(g) has through willful or grossly negligent conduct disclosed
any Confidential Information without authorization except as otherwise
permitted by this Agreement, any other agreement between the Parties
or any policy of the Company in effect at the time of disclosure; or
(h) has failed for any reason, within ten (10) days of receipt by
the Executive of written notice thereof from the Company, to correct,
cease or alter any action or omission by which the Executive has
breached his or her duty of loyalty to the Company.
The Company shall have the burden of proving Cause in any dispute
proceeding between the Company and the Executive.
1.5 A "CHANGE IN CONTROL" shall be deemed to have occurred if:
(a) individuals who, as of the date of this Agreement, constitute
the entire Board of Directors of the Company ("INCUMBENT DIRECTORS")
cease for
-2-
any reason to constitute at least a majority of the Board of Directors
of the Company; provided, however, that any individual becoming a
director subsequent to such date whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at
least a majority of the then Incumbent Directors (other than an
election or nomination of an individual whose assumption of office is
the result of an actual or threatened election contest relating to the
election of directors of the Company), also shall be an Incumbent
Director; or
(b) the stockholders of the Company shall approve (A) any merger,
consolidation, or recapitalization of the Company (or, if the capital
stock of the Company is affected, any subsidiary of the Company) or
any sale, lease, or other transfer (in one transaction or a series of
transactions contemplated or arranged by any party as a single plan)
of all or substantially all of the assets of the Company (each of the
foregoing being an "ACQUISITION Transaction") where (1) the
stockholders of the Company immediately prior to such Acquisition
Transaction would not immediately after such Acquisition Transaction
beneficially own, directly or indirectly, shares representing in the
aggregate more than fifty percent (50%) of (a) the then outstanding
common stock of the corporation surviving or resulting from such
merger, consolidation or recapitalization or acquiring such assets of
the Company, as the case may be (the "SURVIVING CORPORATION") (or of
its ultimate parent corporation, if any) and (b) the Combined Voting
Power (as defined below) of the then outstanding Voting Securities (as
defined below) of the Surviving Corporation (or of its ultimate parent
corporation, if any) or (2) the Incumbent Directors at the time of the
initial approval of such Acquisition Transaction would not immediately
after such Acquisition Transaction constitute a majority of the Board
of Directors of the Surviving Corporation (or of its ultimate parent
corporation, if any) or (B) any plan or proposal for the liquidation
or dissolution of the Company; or
(c) any Person (as defined below) other than a Permitted Holder
(as defined below) shall become the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as
amended (THE "EXCHANGE ACT")), directly or indirectly, of securities
of the Company representing in the aggregate fifty percent (50%) or
more of either (i) the then outstanding shares of the Company Common
Stock or (ii) the Combined Voting Power of all then outstanding Voting
Securities of the Company; provided, however, that notwithstanding the
foregoing, a Change of Control shall not be deemed to have occurred
for purposes of this clause (c) solely as the result of:
(A) an acquisition of securities by the Company which, by
reducing the number of shares of the Company Common Stock or
other Voting Securities outstanding, increases (i) the
proportionate number of shares of the Company Common Stock
beneficially owned by any Person
-3-
to fifty percent (50%) or more of the shares of the Company
Common Stock then outstanding or (ii) the proportionate voting
power represented by the Voting Securities beneficially owned by
any Person to fifty percent (50%) or more of the Combined Voting
Power of all then outstanding Voting Securities; or
(B) an acquisition of securities directly from the
Company except that this paragraph (B) shall not apply to:
(1) any conversion of a security that was not acquired
directly from the Company; or
(2) any acquisition of securities if the Incumbent
Directors at the time of the initial approval of such
acquisition would not immediately after (or otherwise as a
result of) such acquisition constitute a majority of the
Board of Directors of the Company.
(d) For purposes of this Section 1.5:
(i) "PERSON" shall mean any individual, entity (including,
without limitation, any corporation, partnership, limited
liability company, trust, joint venture, association or
governmental body) or group (as defined in Section 13(d)(3) or
14(d)(2) of the Exchange Act and the rules and regulations
thereunder); provided, however, that "Person" shall not include
the Company, any of its subsidiaries, any employee benefit plan
of the Company or any of its majority-owned subsidiaries or any
entity organized, appointed or established by the Company or such
subsidiary for or pursuant to the terms of any such plan;
(ii) "VOTING SECURITIES" shall mean all securities of a
corporation having the right under ordinary circumstances to vote
in an election of the Board of Directors of such corporation;
(iii) "COMBINED VOTING POWER" shall mean the aggregate votes
entitled to be cast generally in the election of directors of a
corporation by holders of then outstanding Voting Securities of
such corporation; and
(iv) "PERMITTED HOLDER" shall mean (A) the Company or any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company and (B) to the extent they hold
securities in any capacity whatsoever, Xxxxx X. Xxxxxxx and Xxx
Xxxxxxx and their
-4-
respective estates, spouses, heirs, ancestors, lineal
descendants, step children, legatees and legal representatives,
and the trustees of any bona fide trusts of which one or more of
the foregoing are the sole beneficiaries or grantors thereof and
(C) any Person controlled, directly or indirectly, by one or more
of the foregoing Persons referred to in the immediately preceding
clause (B), whether through the ownership of voting securities,
by contract or otherwise.
1.6 "CODE" shall mean the Internal Revenue Code of 1986, as amended,
or any succeeding provisions of law. Any references herein to specific
sections of the Code shall extend to and include the applicable succeeding
provisions of law, if any.
1.7 "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 or her employment, including, without limitation, all
Confidential Information and all other files, records, documents, drawings,
specifications, memoranda, notes, reports, studies, manuals, equipment,
computer disks, videotapes, 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.
1.8 "COMPENSATION COMMITTEE" shall mean the Compensation Committee of
the Board.
1.9 "COMPETING BUSINESS" shall mean any Person engaged in the casino
gaming industry directly or through an Affiliate or subsidiary.
1.10 "CONFIDENTIAL INFORMATION" shall mean all Confidential
Information as defined in the Company's Confidentiality and Non-Disclosure
Policy as in effect from time to time, the current version of which has
been delivered to the Executive.
1.11 "DEFERRED COMPENSATION PLAN" shall mean the Company's Deferred
Compensation Plan, as in effect on the date of this Agreement and as it may
be amended from time to time. The terms and conditions of such Plan shall
be substantially similar during the Executive's employment under this
Agreement as terms and conditions of comparable deferred compensation
arrangements for other senior executive officers of the Company in effect
from time to time.
1.12 "DISABILITY" shall mean a physical or mental incapacity that
prevents the Executive from performing, with or without reasonable
accommodation, the essential functions of his or her position with the
Company for a period of ninety (90) consecutive 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 a licensed healthcare
professional selected by the Company, in its sole discretion, to determine
-5-
whether a Disability exists, to whom the Executive hereby agrees to submit
to medical examinations. In addition, the Executive may submit to the
Company documentation of a Disability, or lack thereof, from a licensed
healthcare professional of his or her 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 "GOOD REASON" as used in this Agreement shall mean and exist if,
without the Executive's prior written consent, one or more of the following
events occurs and the Company fails for any reason, within ten (10) days of
receipt by the Company of written notice thereof from the Executive, to
correct, cease or alter any action or omission causing any such event(s):
(a) the Executive is assigned any significant duties or
responsibilities that are inconsistent with the scope of duties and
responsibilities associated with the Executive's position as described
in Section 2.3 including without limitation (i) the appointment of any
person other than the Executive as the principal legal affairs officer
of the Company, or (ii) the requirement that the Executive report to
any person other than the Executive Vice President or the Chief
Executive Officer of the Company;
(b) the Executive is required to relocate from, or maintain his
or her principal office outside of, a twenty-five (25) mile radius of
his or her principal office location as of the date of this Agreement;
(c) the Executive's Base Salary is decreased by the Company;
(d) during the first twelve (12) months following a Change in
Control, the failure of the Company to award the Executive an annual
bonus equal to at least seventy-five percent (75%) of the average
amount of the annualized bonus paid to the Executive for the last two
(2) full years;
(e) the Executive is excluded from participation in any employee
benefit or short-term incentive plan or program or his or her benefits
under such plans or programs are materially reduced in violation of
Section 4.1 or any other provision of this Agreement;
-6-
(f) the Company fails to pay the Executive any deferred payments
that have become payable under the Deferred Compensation Plan;
(g) the Company fails to reimburse the Executive for business
expenses properly incurred in accordance with the Company's policies,
procedures or practices;
(h) the Company fails to obtain a written agreement from any
assignee of the Company to assume the obligations under this
Agreement, the Indemnification Agreement and any and all stock option
and restricted stock agreements between the Executive and the Company
(or a substantially equivalent replacement for such stock option and
restricted stock agreements) upon an assignment of this Agreement in a
sale of assets constituting a Change in Control; or
(i) a material breach by the Company of its obligations under
this Agreement, the Indemnification Agreement, or any written plan
documents or agreements of the Company defining stock option rights,
restricted stock rights or employee benefit plans rights of the
Executive.
If the Company disputes the existence of Good Reason, the Company
shall have the burden of proving the absence of Good Reason.
1.15 "INDEMNIFICATION AGREEMENT" means that certain Indemnification
Agreement of even date herewith by and between the Company and the
Executive.
1.16 "PERSON" shall mean any individual, firm, partnership,
association, trust, company, corporation, limited liability company or
other entity.
1.17 "RESTRICTED AREA" shall mean the areas within a fifty (50) mile
radius of any specifically identified location at which the Company or one
of its Affiliates operates a casino, or has publicly announced in good
faith an intention to operate a casino, on the date of termination or
expiration of the Executive's employment; provided, however, that (i) if
the Company or one of its Affiliates operates a casino, or has publicly
announced in good faith an intention to operate a casino, in the Las Vegas
Strip and/or Las Vegas Downtown market areas but not in the Las Vegas
Locals market area, then the Restricted Area in respect of such casino or
casinos shall be applicable only to Las Vegas Strip and Las Vegas Downtown
market area casinos, and (ii) if the Company or one of its Affiliates
operates a casino, or has publicly announced in good faith an intention to
operate a casino, in the Las Vegas Locals market area but not in the Las
Vegas Strip and/or Las Vegas Downtown market areas, then the Restricted
Area in respect of such casino or casinos shall be applicable only to Las
Vegas Locals market area casinos.
-7-
1.18 "RESTRICTION PERIOD" shall mean the period ending twelve (12)
months after the termination or expiration of the Term of Employment,
regardless of the reason for such termination or expiration.
1.19 "TERM OF EMPLOYMENT" shall mean the period specified in Section
2.2.
2. TERM OF EMPLOYMENT, POSITION AND RESPONSIBILITIES.
2.1 EMPLOYMENT ACCEPTED; GAMING COMPLIANCE PROGRAM INVESTIGATION.
(a) 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 duties and responsibilities
set forth in Section 2.3, and upon such other terms and subject to
such other conditions as are stated in this Agreement.
(b) As required by the Company's Gaming Compliance Program, as
approved by the Nevada Gaming Control Board, this Agreement and the
Executive's employment by the Company are subject to and expressly
conditioned upon the completion of a personal background investigation
to the satisfaction of the Company.
2.2 TERM OF EMPLOYMENT. The initial Term of Employment shall commence
on April 3, 2002, and unless earlier terminated pursuant to the provisions
of this Agreement, the initial Term of Employment shall terminate at the
close of business on April 2, 2003; provided, however, that the initial
Term of Employment shall automatically be extended for successive one-year
terms, unless either Party gives written notice of termination in
accordance with Section 14 not less than ninety (90) days prior to the
expiration of the then-present Term of Employment. In the event that such
notice is given, the Executive's employment shall terminate at the close of
business on the last day of then current Term of Employment and in that
event that date shall be the Executive's last day of employment.
2.3 TITLE AND RESPONSIBILITIES.
(a) During the Term of Employment, the Executive shall be
employed as Senior Vice President and General Counsel of the Company
and will perform such other duties and services as, from time to time,
are reasonably required by the Company's Executive Vice President,
Chief Executive Officer or Board. The Executive shall be responsible
for supervision of the legal, regulatory and compliance functions for
the Company and its Affiliates, and the Executive shall share
responsibility with other officers of the Company for the supervision
of the risk management functions for the Company and its Affiliates.
The Executive shall be appointed by the Board as a corporate
-8-
executive officer of the Company at all times during the Term of
Employment. The Executive will report directly to the Executive Vice
President or the Chief Executive Officer of the Company, as determined
from time to time by the Company. During the Term of Employment, the
Company will not reduce the title or responsibilities of the
Executive.
(b) Except as set forth below, during the Term of Employment, the
Executive shall devote substantially all of his or her business time
and attention to the business and affairs of the Company and its
subsidiaries and Affiliates and shall use his or her best efforts,
skills and abilities to promote the Company's interests.
Notwithstanding the foregoing, the Executive shall not be precluded
from engaging in charitable and community affairs and managing his or
her personal investments, as long as such activities do not materially
detract from the Executive's performance of his or her duties under
this Agreement. In addition, notwithstanding the foregoing, the
Executive will be allowed to retain an of counsel relationship with
the law firm of Xxxxx Xxxxxx Xxxxxx & Xxxxxxxx LLP or its successor
(the "Firm"). In this capacity, the Executive may prepare for and
argue an administrative appeal for a pending case as previously
disclosed to the Company, refer potential clients to the Firm and
consult on an incidental basis with lawyers in the Firm so long as
such activities do not materially detract from the Executive's
performance of his or her duties under this Agreement. The Executive
may retain any compensation received from the Firm; provided, however,
that in no event shall the Executive directly or indirectly receive
any compensation from the Firm in respect of any services performed by
or on behalf of the Firm for the Company or its subsidiaries or
Affiliates. The Company's employed lawyers' insurance coverage will
not protect the Executive in any way for any services performed by the
Executive for or on behalf of the Firm. If at any time the Firm does
not maintain, or the Executive's work for the Firm is not covered by,
a professional errors and omissions insurance policy with commercially
reasonable limits and deductibles, the Company may require the
Executive to sever his relationship with the Firm and cease performing
any legal services outside the employment of the Company. The
Executive may serve as a member of the board of directors (or the
equivalent) of corporations and limited liability companies, subject
to the approval of a majority of the Board.
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 in monthly or
more frequent installments as shall be established by the Company as its
normal payroll practice from time to time or as required by applicable law
at an annualized rate of no less than Three Hundred Thousand Dollars and
00/100 ($300,000.00), subject to reduction for any and all applicable
federal, state, and local withholding, social security
-9-
and unemployment taxes. Such Base Salary shall be reviewed annually as of
the anniversary of the Executive's date of hire for increase (but not
decrease) in the discretion of the Company. In conducting any such annual
review, the Company shall consider any change in the Executive's
responsibilities, the performance of the Executive and/or other factors
deemed pertinent by the Company. Such increased Base Salary shall then
constitute the Executive's "Base Salary" for purposes of this Agreement.
3.2 ANNUAL BONUS. Based on merit and the financial performance of the
Company, the Executive will be eligible to receive a discretionary bonus
for each fiscal year of the Company equal to up to fifty percent (50%) of
the Executive's weighted average Base Salary for such fiscal year ("ANNUAL
BONUS"). Any Annual Bonus that may be awarded to the Executive shall be
paid at the same time as annual bonuses are paid to other similarly
situated management personnel of the Company, unless the Executive has
elected to defer receipt of all or part of the bonus amounts to which he or
she is entitled in respect of any such calendar year, in accordance with
the terms and provisions of any Deferred Compensation Plan maintained by
the Company. The Annual Bonus for 2002 will not be subject to proration
based on the Executive's date of hire, and instead the Annual Bonus for
2002 will be payable on the basis as if the Executive were employed by the
Company for the entire year.
3.3 DEFERRED COMPENSATION. Subject to the approval of the Compensation
Committee, the Executive shall be eligible to participate in the Company's
Deferred Compensation Plan pursuant to the terms of that plan.
3.4 GRANT OF STOCK OPTIONS. Subject to the approval of the
Compensation Committee, the Executive shall receive non-qualified stock
options exercisable for One Hundred Twenty-Five Thousand (125,000) shares
of the Company's Common Stock with a per share exercise price equal to the
per share fair market value of the Company's Common Stock on the date of
grant of the options. The grant date of the stock options will be the date
on which the Compensation Committee approves the stock option grant, and
the vesting schedule will be over five (5) years at the rate of twenty
percent (20%) each year, with the first vesting date occurring on April 2,
2003. The options will be exercisable for a term of ten (10) years
following the grant date. The options will be subject to the provisions of
a separate stock option agreement to be entered into between the Company
and the Executive and the terms of the plan under which the options will be
granted.
4. EMPLOYEE BENEFIT PROGRAMS.
4.1 PENSION AND WELFARE BENEFIT PLANS. In addition to the benefits
provided for in Sections 3.3 and 3.4, during the Term of Employment, the
Executive shall be entitled to participate in all employee benefit plans
and programs made available to similarly situated senior management
personnel of the Company generally, as such
-10-
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, group health supplemental insurance
coverage through the Company's Exec-U-Care Medical Plan or a substitute
plan, accidental death and dismemberment insurance, long-term disability,
sick leave (including salary continuation arrangements), vacations, paid
time off, holidays and other employee benefit programs as such plans and
programs are exclusively described in written plan and program documents,
subject to the eligibility criteria, rules, plan provisions and regulations
applicable to such plans and programs and to the provisions of ERISA and
the Code. Nothing contained herein shall be construed as negating or
limiting the ability of the Company to amend, modify or terminate any
employee benefit programs or plans, in its sole discretion. The Executive's
wage income subject to income taxation will include certain imputed amounts
in respect of the life insurance benefits and primary group health plan
benefits provided by the Company without cost to the Executive, but the
Executive will not be required to contribute to the cost of these programs
except as set forth in the last sentence of this Section. Until the first
day of the calendar month following ninety (90) days of continuous
employment of the Executive by the Company (the "INITIAL HEALTH PLAN
PERIOD"), the amount of imputed income in respect of the primary group
health plan benefits will be measured by the fair market value of these
benefits (the "FMV AMOUNT"); thereafter the amount of imputed income in
respect of these benefits will be measured by the premium contribution that
otherwise would be due from the Executive under the provisions of the plan
but for the Company's waiver of the Executive's contribution requirements
(the "BASE PREMIUM AMOUNT"). The gross amount of each payroll installment
in respect of any portion of the initial health plan period will be
increased by an amount equal to (i)(A) the excess of the FMV amount for the
period covered by the payroll installment over (B) the base premium amount
for the period covered by the payroll installment (ii) multiplied by an
assumed rate of income taxation (as determined by the Company and applied
on a uniform basis to similarly situated personnel). The Executive will be
responsible for making payment through payroll deduction of premiums for
group long-term disability coverage if the Executive elects to enroll for
such coverage; provided, however, that in such event, the gross amount of
each payroll installment received by the Executive will be increased by an
amount equal to any long-term disability premium deducted from such
installment.
4.2 RESPONSIBILITY FOR TAX LIABILITIES. Except as may otherwise be
expressly provided in this Agreement, the Company shall not be responsible
in any way for any income or other tax liabilities of the Executive due in
connection with the receipt by the Executive of any compensation, benefits
or perquisites from the Company.
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 or her in performing
services under this Agreement,
-11-
including any relocation expenses in accordance with Company policies,
subject to providing the proper documentation of said expenses and to
Company policies in effect from time to time with respect thereto.
5.2 PERQUISITES. During the Term of Employment, the Executive shall
also be entitled to the Company's perquisites provided to executive
officers generally, including vacations and other paid time off, in
accordance with the written terms and provisions of the documents
exclusively defining applicable policies as in effect from time to time,
including, without limitation:
(a) the Executive will receive hotel, food and beverage
complimentary privileges for business and personal use at the
properties operated by the Company's subsidiaries, including for the
benefit of guests of the Executive whether or not the Executive is
present;
(b) the Executive will be eligible for complimentary use of the
Company's condominiums in Sun Valley, Idaho, for so long as the
Company retains such leased condominiums; and
(c) the Company will pay the Executive's bar association and
other professional association dues and the Executive's expenses of
continuing legal education (including the reimbursement of associated
travel, lodging and meal expenses in accordance with Section 5.1)
required as a condition of the Executive's license to practice law or
reasonably related to the Executive's duties and responsibilities.
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 or her death or
Disability. In the event of a termination due to the Executive's death or
Disability, the Executive or his or her beneficiary designated pursuant to
Section 17, or if none, his or her estate, as the case may be, shall be
entitled, in consideration of the Executive's obligations under Section 10
and in lieu of any other compensation whatsoever, to:
(a) earned but unpaid Base Salary at the time of his or her death
or Disability;
(b) any Annual Bonus earned pursuant to Section 3.2, in respect
of employment during the entire calendar year preceding the calendar
year in which death or Disability occurs, but not yet paid;
(c) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
-12-
(d) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(e) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining stock
option rights, restricted stock rights and applicable employee benefit
plans and programs, according to the terms and conditions of such
documents and agreements; and
(f) any and all amounts owed by the Company under Sections
6.1(a), 6.1(b), 6.1(c) and 6.1(d) shall be paid by the Company within
sixty (60) days of the date of termination of employment. Any and all
amounts owed by the Company under Section 6.1(e) shall be paid at the
later of sixty (60) days following the date of termination or the
date(s) specified under the applicable written plan documents or
agreements.
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 that the Company
intends to terminate his or her employment for Cause and setting forth the
basis of the Cause with reasonable specificity. In the event of a
termination for Cause, the Executive shall be entitled, in consideration of
the Executive's obligations under Section 10 and in lieu of any other
compensation whatsoever, to:
(a) earned but unpaid Base Salary through the date of termination
of employment;
(b) any Annual Bonus earned pursuant to Section 3.2, in respect
of employment during the entire calendar year preceding the calendar
year in which termination occurs, but not yet paid;
(c) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
(d) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(e) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining stock
option rights, restricted stock rights and applicable employee benefit
plans and programs, according to the terms and conditions of such
documents and agreements; and
(f) any and all amounts owed by the Company under Sections
6.2(a), 6.2(b), 6.2(c) and 6.2(d) shall be paid by the Company within
sixty (60) days of
-13-
the date of termination of employment. Any and all amounts owed by the
Company under Section 6.2(e) shall be paid at the later of sixty (60)
days following the date of termination or the date(s) specified under
the applicable written plan documents or agreements.
No termination for Cause and nothing in this Agreement shall waive or be
deemed to waive any rights or claims or remedies as may be available to the
Company arising out of the facts giving rise to such termination for Cause.
6.3 TERMINATION BY THE EXECUTIVE WITHOUT GOOD REASON. The Executive
may terminate his or her employment without Good Reason on his or her own
initiative for any reason or no reason upon thirty (30) days' prior written
notice to the Company. Such termination shall have the same consequences as
a termination by the Company for Cause under Section 6.2.
6.4 TERMINATION BY THE EXECUTIVE FOR GOOD REASON. Notwithstanding any
other provision of this Agreement, the Executive may terminate his or her
employment hereunder at any time during the Term of Employment for Good
Reason (as defined in Section 1.14 of this Agreement) by giving thirty (30)
days' written notice to the Company that the Executive intends to terminate
his or her employment for Good Reason. In the event of a termination by the
Executive for Good Reason, the Executive shall be entitled, in
consideration of the Executive's obligations under Section 10 and in lieu
of any other compensation and benefits whatsoever, to:
(a) an amount equal to one (1) times the Executive's annualized
Base Salary at the rate in effect at the time of his or her
termination, which shall be paid out in equal installments for the
duration of the Restriction Period at the same frequency as the
Company's regular payroll payments;
(b) earned but unpaid Base Salary through the date of termination
of employment;
(c) any Annual Bonus earned pursuant to Section 3.2, in respect
of employment during the entire calendar year preceding the calendar
year in which termination occurs, but not yet paid;
(d) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
(e) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(f) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining stock
option rights, restricted
-14-
stock rights and applicable employee benefit plans and programs,
according to the terms and conditions of such documents and
agreements;
(g) continuation of the Executive's primary group health
insurance (excluding Exec-U-Care or substitute benefits), at the
Company's expense, for eighteen (18) months after the termination of
employment or, at the Company's option, payment to the Executive of
the economic equivalent thereof, which shall constitute the provision
of COBRA benefits to the Executive; and
(h) any and all amounts owed by the Company under Sections
6.4(b), 6.4(c), 6.4(d) and 6.4(e) shall be paid by the Company within
sixty (60) days of the date of termination of employment. Any and all
amounts owed by the Company under Sections 6.4(f) and 6.4(g) shall be
paid at the later of sixty (60) days following the date of termination
or the date(s) specified under the applicable written plan documents
or agreements.
6.5 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 that the Company intends to terminate his or her
employment without Cause. In the event that the Company terminates the
Executive's employment without Cause, the Executive shall be entitled, in
consideration of the Executive's obligations under Section 10 and in lieu
of any other compensation and benefits whatsoever, to:
(a) a payment amount equal to one (1) times the Executive's
annualized Base Salary, at the rate in effect at the time of his or
her termination, which shall be paid out in equal installments for the
duration of the Restriction Period at the same frequency as the
Company's regular payroll payments;
(b) earned but unpaid Base Salary through the date of termination
of employment;
(c) any Annual Bonus earned pursuant to Section 3.2, in respect
of employment during the entire calendar year preceding the calendar
year in which termination occurs, but not yet paid;
(d) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
(e) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(f) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without
-15-
limitation, documents and agreements defining stock option rights,
restricted stock rights and applicable employee benefit plans and
programs, according to the terms and conditions of such documents and
agreements;
(g) continuation of the Executive's primary group health
insurance (excluding Exec-U-Care or substitute benefits), at the
Company's expense, for eighteen (18) months after the termination of
employment or, at the Company's option, payment to the Executive of
the economic equivalent thereof, which shall constitute the provision
of COBRA benefits to the Executive; and
(h) any and all amounts owed by the Company under Sections
6.5(b), 6.5(c), 6.5(d) and 6.5(e) shall be paid by the Company within
sixty (60) days of the date of termination of employment. Any and all
amounts owed by the Company under Sections 6.5(f) and 6.5(g) shall be
paid at the later of sixty (60) days following the date of termination
or the date(s) specified under the applicable written plan documents
or agreements.
6.6 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 except as may be expressly
provided for herein, 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. Notwithstanding the
foregoing, if the Company elects not to extend the initial Term of
Employment or any successive Term of Employment, such election shall have
the same consequences as a termination of the Executive's employment
without Cause, effective as of the last day of the then current Term of
Employment, unless the Executive's employment is otherwise terminated prior
to the last day of the then current Term of Employment, in which case the
consequences of such termination of employment shall be dependent upon the
basis for such termination of employment as provided in this Agreement.
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 one (1) times his or her annualized Base Salary, without
regard to continued employment or termination thereof under this Agreement.
Unless otherwise provided for in this Agreement, the Executive's rights
under a Change in Control to benefits under programs, plans and policies of
the Company shall be determined according to the written terms and
provisions of documents exclusively defining such programs, plans and
policies.
-16-
7.2 TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR
GOOD REASON AFTER A CHANGE IN CONTROL. If within twelve (12) months
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 Section 7.1, but in lieu of any other compensation and benefits
whatsoever (including but not limited to the compensation and benefits
pursuant to Sections 6.4 and 6.5), to:
(a) an amount equal to one (1) times the Executive's annualized
Base Salary at the rate in effect at the time (i) of his or her
termination or (ii) immediately preceding the Change in Control,
whichever is greater, which shall be paid out in equal installments
for the duration of the Restriction Period at the same frequency as
the Company's regular payroll payments;
(b) earned but unpaid Base Salary through the date of termination
of employment;
(c) any Annual Bonus earned pursuant to Section 3.2, in respect
of employment during the entire calendar year preceding the calendar
year in which termination occurs, but not yet paid;
(d) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
(e) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(f) such rights to other benefits as may be provided in
applicable written plan documents and agreements of the Company,
including, without limitation, documents and agreements defining stock
option rights, restricted stock rights and applicable employee benefit
plans and programs, according to the terms and conditions of such
documents and agreements;
(g) continuation of the Executive's primary group health
insurance (excluding Exec-U-Care or substitute benefits), at the
Company's expense, for eighteen (18) months after the termination of
employment or, at the Company's option, payment to the Executive of
the economic equivalent thereof, which shall constitute the provision
of COBRA benefits to the Executive; and
(h) any and all amounts owed by the Company under Sections
7.2(b), 7.2(c), 7.2(d) and 7.2(e) shall be paid by the Company within
sixty (60) days of the date of termination of employment. Any and all
amounts owed by the Company under Sections 7.2(f) and 7.2(g) shall be
paid at the later of sixty (60)
-17-
days following the date of termination or the date(s) specified under
the applicable written plan documents or agreements.
7.3 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 (including without
limitation a termination by the Company without Cause or a termination by
the Executive for Good Reason more than twelve (12) months following the
Change in Control), his or her rights shall be determined in accordance
with the applicable subsection in 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 under Sections 6 and 7 shall be
payable upon the satisfaction of the conditions set forth in this
Agreement.
8.2 NO MITIGATION; NO OFFSET. In the event of any termination of the
Executive's employment under Section 6 or 7, the Executive shall be under
no obligation to seek other employment, and there shall not be offset
against amounts due to the Executive 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 Section 6 or 7, which are in the
nature of liquidated damages, 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 public any negative comment or statement about the other
Party or concerning the reasons for such termination; provided, however,
that this sentence shall not apply to written or oral testimony by either
Party or their respective employees or agents or representatives in
litigation, arbitration or administrative proceedings in which the Parties
are adverse. The provisions of this Section 8.2 shall survive the
expiration or earlier termination of this Agreement.
8.3 COMPLIANCE WITH THE AGREEMENT. No payments or benefits payable to
the Executive upon the termination of his or her employment pursuant to
Section 6 or 7 shall be made to the Executive if he or she fails to comply
with all of the terms and conditions of this Agreement, including, without
limitation, any provisions requiring the Executive to pay any amounts to
the Company and Sections 10 and 11.
8.4 PAYMENTS UPON TERMINATION CONDITIONED ON RELEASE OF CLAIMS. Any
payments to the Executive under Section 6 or 7 shall be subject to the
condition that the Executive accepts and executes, without subsequent
revocation, a release of claims substantially in the form attached hereto
as Exhibit A.
-18-
8.5 CONTINUING OBLIGATIONS OF THE EXECUTIVE. No act or omission by the
Executive in breach of this Agreement, shall be deemed to permit the
Executive to forego or waive such payments in order to avoid his or her
obligations under Section 10 or 11.
9. SPECIAL REIMBURSEMENT.
9.1 GROSS-UP PAYMENT. 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 Section 7.1 or the termination of the
Executive's employment pursuant to Section 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 of the Company,
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 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 DETERMINATION OF EXCISE TAX LIABILITY. For purposes of determining
whether any of the Total Payments will be subject to the Excise Tax and the
amount of such Excise Tax, 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 it is reasonably determined by tax counsel or another professional
adviser selected by the Company (which determination shall be provided to
the Executive) that (i) such Total Payments (in whole or in part) 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)
such Total Payments (in whole or in part) are not otherwise subject to the
Excise Tax.
9.3 REPAYMENT OBLIGATION. 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 as of either the date of the Change in
Control or the date of actual payment, whichever is applicable (including
by reason of
-19-
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 Section 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. COVENANT NOT TO ENGAGE IN CERTAIN ACTS.
10.1 GENERAL. The Parties understand and agree that the purpose of the
restrictions contained in this Section 10 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 or her ability
to make a living after the termination of his or her employment with the
Company. The provisions of this Section 10 shall survive the expiration or
sooner termination of this Agreement.
10.2 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 of the Company, the
Executive shall not, directly or indirectly, for himself or herself or any
third party, or alone or as a member of a partnership or limited liability
company, or as an officer, director, shareholder, member or otherwise,
engage in the following acts:
(a) divert or attempt to divert any existing business of the
Company or any Affiliate of the Company;
(b) accept any position or affiliation or assignment with, or
render any services (whether as an independent contractor or employee)
on behalf of, any Competing Business within the Restricted Area;
(c) accept any position or affiliation or assignment or render
any services (whether as an independent contractor or employee) within
the corporate, divisional or regional headquarters or corporate,
divisional or regional management group of any Competing Business
whose operations and properties include one or more casinos within the
Restricted Area; or
-20-
(d) hire or retain any employee of the Company or any Affiliate
of the Company 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 of the Company to (i) terminate and/or leave such employment
or (ii) accept employment with anyone other than the Company or an
Affiliate of the Company.
10.3 CESSATION/REIMBURSEMENT OF PAYMENTS. If the Executive violates
any provision of this Section 10, 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 4,
Section 6 and Section 7.2, and the Executive shall 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 or her obligations under this Section
10; and provided, further, that any release of claims by the Executive
pursuant to Section 8.4 shall continue in effect.
10.4 SURVIVAL. The Executive agrees that the provisions of this
Section 10 shall survive the termination of this Agreement and the
termination of the Executive's employment.
11. CONFIDENTIAL INFORMATION AND COMPANY PROPERTY.
11.1 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 to
comply with the terms of the Company's Confidentiality and Non-Disclosure
Agreement as in effect from time to time, the current version of which has
been delivered to the Executive.
11.2 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 or her control.
11.3 PROHIBITION ON XXXXXXX XXXXXXX. The Executive hereby agrees to
comply with and be bound by the Company's Xxxxxxx Xxxxxxx Policy as in
effect from time to time, the current version of which has been delivered
to the Executive.
-21-
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. MUTUAL ARBITRATION AGREEMENT.
12.1 ARBITRABLE CLAIMS. All disputes between the Executive (and his or
her attorneys, successors, and assigns) and the Company (and its trustees,
beneficiaries, officers, directors, members, managers, Affiliates,
employees, agents, successors, attorneys, and assigns) relating in any
manner whatsoever to the employment of or termination of employment 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 12, except for claims set forth in Section
12.4 (the "MUTUAL ARBITRATION AGREEMENT"). Arbitrable Claims shall include,
but are not limited to: claims brought under Title VII of the Civil Rights
Acts of 1964, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967 (including the Older Workers Benefit Protection
Act), the Americans with Disabilities Act, the Fair Labor Standards Act,
the Equal Pay Act, the Family and Medical Leave Act, ERISA, the Nevada Fair
Employment Practices Act (NRS 613.010 et seq.), any state statutory wage
claim under Chapter 608 of the Nevada Revised Statutes, or any other
applicable federal, state or local labor or fair employment law, all as
amended from time to time; claims for compensation; claims for breach of
any contract or covenant (express or implied); tort claims of all kinds;
and all claims based on any federal, state, or local law, statute or
regulation. 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 12.4.
12.2 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 court
action in any way related to an Arbitrable Claim. All arbitration hearings
under this Agreement shall be conducted in Las Vegas, Nevada. Unless
otherwise required by law or as may be required to uphold the
enforceability of this Mutual Arbitration Agreement, the fees and costs of
the arbitrator and of the American Arbitration Association shall be divided
equally between both Parties.
12.3 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
-22-
Person other than the parties to the proceedings, their counsel, witnesses
and experts, the arbitrator and, if involved, the court and court staff.
12.4 APPLICABILITY. This Section 12 shall apply to all disputes under
this Agreement other than disputes relating to the enforcement of the
Company's rights under Sections 10 and 11 of this Agreement and the
Company's right to seek injunctive relief as provided in Section 15.
12.5 ACKNOWLEDGMENT. The Executive acknowledges that he or she:
(a) has carefully read this Section 12;
(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.
13. CONFIDENTIALITY OF PREVIOUS EMPLOYERS' INFORMATION. The Company
acknowledges that the Executive may have had access to confidential and
proprietary information of his or her previous employer(s) and that the
Executive may be obligated to maintain the confidentiality of such information,
not use such information or not to provide certain services to the Company, in
each case pursuant to applicable law and/or any contractual relationship between
the Executive and a previous employer. The Company hereby instructs the
Executive as follows: (1) the Executive shall not disclose any such confidential
or proprietary information to the Company or any of its Affiliates, (2) the
Executive shall not use any such confidential or proprietary information in
connection with his or her employment with the Company, and (3) the Executive
shall not perform any services for the benefit of the Company that would cause
the Executive to be in breach of his or her obligations owed to any previous
employer or other third party. If the Company requests Executive to provide any
such services or to disclose any such information, the Executive will advise the
Company that he or she is prohibited from doing so. The Executive agrees to
indemnify, defend and hold the Company and its Affiliates harmless from and
against any claims, losses or liabilities (including reasonable attorneys' fees)
incurred by the Company or any of its Affiliates as a result of any breach by
Executive of this Section 13.
-23-
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: Ameristar Casinos, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000 Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
President and Chief Executive Officer
With a copy to: Ameristar Casinos, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Executive Vice President
If to the Executive: Xxxxx X. Xxxxx
00000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
15. RIGHT TO SEEK INJUNCTIVE RELIEF. The Executive acknowledges that a
violation on his or her part of any of the covenants contained in Sections 10
and 11 would cause immeasurable and irreparable damage to the Company. The
Executive accordingly agrees and hereby grants his or her 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 or
provisions of this Agreement conflict with the terms and provisions of any
employee benefit plan document, the terms and provisions of such employee
benefit plan document shall govern; and the Company shall take any and all
actions that may be necessary, including amendment of any plan document, to the
extent necessary 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
-24-
or her incompetence, reference in this Agreement to the Executive shall be
deemed, where appropriate, to refer to his or her beneficiary, estate or other
legal representative.
18. SURVIVORSHIP. The respective rights and obligations of the Parties
hereunder shall survive the expiration or any 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.
19. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that
he or she or it is fully authorized and empowered to enter into this Agreement
and that the performance of his or her or its obligations under this Agreement
will not violate any agreement between that Party and any other Person.
20. ENTIRE AGREEMENT. This Agreement and the Indemnification Agreement and
any contemporaneous documents expressly setting forth an agreement between the
Parties and expressly identified in this Agreement contain the entire agreement
between the Parties concerning the subject matter hereof and supersede 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.
22. AMENDMENT OR WAIVER. No provision in this Agreement may be amended or
waived unless such amendment or waiver is agreed to in writing and 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 either Party to exercise
any power given to such Party hereunder or to insist upon strict compliance by
the other Party with any obligation hereunder, and no custom or practice at
variance with the terms hereof, shall constitute a waiver of the right of such
Party to demand strict compliance with the terms hereof.
23. SEVERABILITY. In the event that any provision or portion of this
Agreement 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. Without limiting the foregoing, if any portion of Section 10
is held to be unenforceable, the maximum enforceable restriction of time,
-25-
scope of activities and geographic area will be substituted for any such
restrictions held unenforceable.
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 brought to a
court, the Parties mutually and irrevocably consent to, and waive any objection
to, the exclusive jurisdiction of any federal or state court of competent
jurisdiction sitting in Xxxxx County, Nevada, to resolve such dispute or
controversy; provided, however, that nothing in this Section 24 shall affect the
Parties' agreement in Section 12 hereinabove that arbitration under Section 12
shall apply to all disputes under this Agreement other than as provided in
Section 12.4.
25. INDEMNIFICATION. To the extent not otherwise required by law or the
Indemnification Agreement, the Company will consider in good faith, and
consistent with the Company's past practices, requests by the Executive for
indemnification against claims arising from the Executive's conduct in the
course and scope of the Executive's employment under this Agreement and for
advancement of expenses reasonably incurred in defending against such claims.
26. 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.
27. 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.
28. ACKNOWLEDGMENT. The Executive represents and acknowledges the
following:
(a) he or she has carefully read this Agreement in its entirety;
(b) he or she understands the terms and conditions contained
herein;
(c) he or she has had the opportunity to review this Agreement
with legal counsel of his or her own choosing, and either has done so
or has intentionally elected not to do so, and in any event he or she
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
-26-
(d) he or she is entering into this Agreement knowingly and
voluntarily.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
AMERISTAR CASINOS, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
EXECUTIVE:
/s/ XXXXX X. XXXXX
----------------------------------------
XXXXX X. XXXXX
-27-
EXHIBIT A
SEPARATION AGREEMENT
AND
GENERAL AND SPECIAL RELEASE
This Separation Agreement and General and Special Release ("Agreement") is
made by and between XXXXX X. XXXXX (the "Executive") and AMERISTAR CASINOS,
INC., a Nevada corporation ("Company"), with respect to separation payments to
be paid to the Executive conditioned in part on a complete release by the
Executive of any and all claims against the Company and its affiliated entities,
their respective directors, officers, employees, agents, accountants, attorneys,
representatives, successors and assigns.
In consideration of delivery to the Executive of the severance payments and
benefits by the Company conditionally promised by the Company in that certain
Executive Employment Agreement by and between the Executive and the Company
dated as of March 13, 2002 (the "Employment Agreement") and with the sole
exception of those obligations expressly recited herein or to be performed
hereunder and of the Executive's claims to vested interests the Executive may
have in employee benefit plans, stock options or restricted stock as defined
exclusively in written documents, the Executive and the Executive's heirs,
successors and assigns do hereby and forever release and discharge the Company
and its affiliated entities and their past and present directors, officers,
employees, agents, accountants, attorneys, representatives, successors and
assigns from any and all causes of action, actions, judgments, liens,
indebtedness, damages, losses, claims, liabilities and demands of whatsoever
kind and character in any manner whatsoever arising prior to the date of this
Agreement, including but not limited to any claim for breach of contract, breach
of implied covenant, breach of oral or written promise, allegedly unpaid
compensation, wrongful termination, infliction of emotional distress,
defamation, interference with contract relations or prospective economic
advantage, negligence, misrepresentation or employment discrimination, and
including without limitation, to the extent permitted by law, alleged violations
of Title VII of the Civil Rights Act of 1964 prohibiting discrimination based on
race, color, religion, sex or national origin, the Civil Rights Act of 1991, the
Age Discrimination in Employment Act of 1967 (including the Older Workers
Benefit Protection Act) prohibiting discrimination based on age over 40, the
Americans With Disabilities Act prohibiting discrimination based on disability,
the Fair Labor Standards Act, the Equal Pay Act, the Family and Medical Leave
Act, the Employee Retirement Income Security Act of 1974, the Nevada Fair
Employment Practices Act (NRS 613.010 et seq.), any state statutory wage claim
under Chapter 608 of the Nevada Revised Statutes, and any other federal, state
or local labor or fair employment law under which a claim might be brought were
it not released here, all as amended from time to time.
The Executive assumes the risk of any mistake of fact and of any facts
which are unknown, and thereby waives any and all claims that this release does
not extend to claims which the Executive does not know or suspect to exist in
his or her favor at the time of
-1-
executing this release, which if known by the Executive must or might have
materially affected his or her settlement with the Company.
The Executive and the Company represent, understand and expressly agree
that this Agreement sets forth all of the agreements, covenants and
understandings of the parties, superseding all other prior and contemporaneous
oral and written agreements with respect to the termination or separation of the
Executive's employment excepting only those written agreements set forth or
referred to in the Employment Agreement between the Executive and the Company.
The Executive and the Company agree that no other agreements or covenants will
be binding upon the parties unless set forth in a writing signed by the parties
or their authorized representatives, and that each of the parties is authorized
to make the representations and agreements herein set forth by or on behalf of
each such party. The Executive and the Company each affirms that no promises
have been made to or by either to the other except as set forth in the
Employment Agreement or this Agreement.
The Executive and the Company agree that any and all disputes,
controversies or claims arising out of this Agreement or concerning his or her
employment or its termination shall be determined exclusively by final and
binding arbitration pursuant to the terms of the Employment Agreement.
-2-
The Executive acknowledges that he or she has had twenty-one (21) days
within which to consider this Agreement if he or she has wished to do so, that
he or she has seven (7) days from the date of his or her acceptance of this
Agreement within which to revoke his or her acceptance, that he or she has been
and hereby is advised by the Company to consult with counsel concerning this
Agreement and has had an opportunity to do so, and that no payments will be made
to the Executive by the Company hereunder until after such seven (7) days and
until the Executive shall have provided thereafter reasonable assurances on
request that he or she has not revoked his or her acceptance of this Agreement
within such seven (7) days. The Executive affirms that he or she enters into
this Agreement freely and voluntarily.
Dated
--------------, ----- at ----------------------------, --------------
----------------------------------------
the Executive
Dated
--------------, ----- at ----------------------------, --------------
AMERISTAR CASINOS, INC.
By
-------------------------------------
Its
-------------------------------------
-3-
