EMPLOYMENT SEPARATION AGREEMENT AND RELEASE
Exhibit 10.1
EMPLOYMENT SEPARATION AGREEMENT AND RELEASE
This Employment Separation Agreement and Release (the “Agreement”) is made and entered into as
of April 30, 2009, by and between FX Real Estate and Entertainment Inc., a Delaware corporation
(the “Company”), and Xxxxx X. Xxxxx, a resident of the State of Nevada (“Executive”).
W I T N E S S E T H:
WHEREAS, the Executive and the Company desire to mutually terminate the Employment Agreement,
dated as of December 31, 2007, between Executive and the Company (the “Employment Agreement”) and
Executive’s employment relationship with the Company and its subsidiaries; and
WHEREAS, the Company and Executive intend the terms and conditions of this Agreement to govern
all issues related to the termination of the Employment Agreement and Executive’s employment and
separation from the Company and its subsidiaries.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and
agreements herein contained, and for other good and valuable consideration, the legal sufficiency
of which is hereby acknowledged, Executive and the Company do hereby agree as follows:
1. Resignation. Executive hereby resigns from his positions as a director and as
Chief Operating Officer of the Company and Chief Executive Officer of each of FX Luxury, LLC (“FX
Luxury”), a Delaware limited liability company and a direct subsidiary of the Company, and FX
Luxury Las Vegas Parent, LLC, a Delaware limited liability company and an indirect subsidiary of
the Company, and any and all other positions he may hold with the Company or any of its affiliates
or subsidiaries, effective as of the Effective Date (as defined in Section 24 below).
2. Termination Payments and Benefits. For a period of three (3) calendar months
following and including the calendar month of the Effective Date, the Company shall pay on
Executive’s behalf COBRA health insurance premiums to continue in effect for such three-month
period the same health insurance benefits he and his covered dependents enjoy on the Effective
Date. Executive shall continue to be covered by the Company’s directors and officers liability
insurance policy in effect on the Effective Date until such policy ceases to be in effect.
Executive acknowledges and agrees that there are no reimbursable business expenses incurred by
Executive through the Effective Date that have not been previously paid to Executive. While the
Company acknowledges that Executive is entitled to be compensated for six (6) weeks of unused
vacation, the Company and Executive have agreed that Executive shall receive, in lieu of
compensation or payment for any unused vacation, the following: (a) Executive shall be entitled to
take for his own use and benefit certain mutually agreed-upon office furniture from the Company’s
Las Vegas, Nevada corporate offices (as set forth in the inventory list attached hereto as Exhibit
A; the “Office Furniture”) and (b) the Company shall grant to Executive the Severance Options
described below in Section 3 hereof. In addition to the foregoing payments and benefits, Executive
shall be entitled to the Contingent Severance Payment described below in Section 4.
Except as set forth in this Section 2 and in Sections 3 and 4 hereof, from and after the Effective
Date, the Company shall have no obligation to make any payments or provide any benefits or other
compensation to Executive with respect to his services as an employee, officer or director of the
Company or its subsidiaries through the Effective Date. For the avoidance of doubt with respect to
the Company having no such obligation to make any payments or provide any benefits or other
compensation to Executive beyond those in Sections 2, 3 and 4 hereof and without limiting the
generality of the foregoing, Executive hereby acknowledges and agrees that any outstanding portion
of his base salary and bonus or other compensation due to him through the Effective Date is hereby
waived.
3. Options.
(a) In accordance with Section 7.4 of the Employment Agreement, on the Effective Date, the
Company shall grant to Executive incentive stock options to purchase up to 1,000,000 shares of the
Company’s common stock1 at an exercise price equal to the fair market value, as
determined under the Company’s 2007 Executive Equity Incentive Plan, of a share of the Company’s
common stock on the Effective Date (such incentive stock options are hereinafter referred to as the
“Severance Options”). The Severance Options shall be approved by the Compensation Committee
of the Company’s board of directors and shall meet the requirements for Annual Options (as defined
in the Employment Agreement) set forth in Section 7.4 of the Employment Agreement.
(b) As of the Effective Date, the vested options to purchase up to 750,000 shares of the
Company’s common stock at $10 per share remain in effect. All other options (except as granted
under Section 3(a) above) shall terminate and Executive shall have no further right with respect
thereto.
4. Contingent Severance Payment.
(a) As further consideration for the termination of the Employment Agreement and Executive
relieving the Company from having to make the payments due under paragraphs (e) and (f) of Section
12.5 of the Employment Agreement for the Salary Payment and Base Bonus Amount (as such terms are
defined in said paragraphs of Section 12.5 of the Employment Agreement), the Company agrees to pay,
and cause FX Luxury to pay, to Executive the “Applicable Percentage” (as defined in subparagraph
4(d) hereof) of any Covered Proceeds (as defined below) attributable to their direct or indirect
beneficial ownership of a Covered Party (as defined below) that flows through to a Covered Party,
without duplication, up to a cumulative maximum of $600,000. “Covered Proceeds” shall be defined
as net distributable proceeds and fees generated from the Covered Property to the extent received
by a Covered Party (and permitted to be distributed pursuant to the terms of any unaffiliated third
party loan agreement) from (i) a sale of Covered Property or a sale by a Covered Party of any
interest in a direct or indirect subsidiary of a Covered Party or (ii) operations or capital
transactions related to a Covered Party, in each case in excess of those expenses reasonably
necessary or incurred to provide services and/or operate or maintain the Covered Property,
including reasonable compensation for executives directly related to revenue generating activities
relating to the
| 1 | The exercise price for the 200,000 shares needs to be the greater of 13¢ per share, which was the fair market value on December 30, 2008 and the fair market value on the Effective Date. For the 800,000 shares, the exercise price needs to be the fair market value on the date of grant. The date of grant will be the date of Compensation Committee approval. |
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Covered Property and reasonable reserves. “Covered Proceeds” shall exclude sums used for the
repayment, reimbursement or distribution of any loans or capital contributions or the payment of
principal or interest, in each case made after the Effective Date with respect to the Covered
Property. “Covered Party” shall be the Company, FX Luxury, FX Luxury Las Vegas Parent, LLC, FX
Luxury Las Vegas I, LLC and FX Luxury Las Vegas II, LLC and any subsidiary of, or successor to, the
foregoing entities which have an interest in the Covered Property and in which any of the foregoing
has a direct or indirect equity interest. The “Covered Property” shall be all or any portion of
the 17.72 acres currently owned by FX Luxury Las Vegas I, LLC and FX Luxury Las Vegas II, LLC.
(b) The Company shall pay, or cause FX Luxury to pay, any amounts due hereunder within two
business days of the receipt of any Covered Proceeds by a Covered Party. Any past due amount owed
hereunder shall bear interest at a rate of 7% per annum, compounded annually, from the due date
until the date of payment. All payments and any applicable interest thereon shall be made payable
to Executive either by check or utilizing electronic bank transfer paid.
(c) In the event that (i) the Company willfully breaches any material obligation under this
Section 4 or (ii) this Section 4 is held to be invalid or unenforceable by any court or
governmental or regulatory authority having jurisdiction over the subject matter hereof or (iii)
this Section 4 is rejected in any bankruptcy proceeding, then in the case of either (i), (ii) or
(iii), this Section 4 shall automatically terminate and be of no force or effect, in each case as
though it was not contained in this Agreement, and each of the parties shall be entitled to pursue
all remedies at law or in equity resulting from the Company’s failure to make the payments due
under paragraphs (e) and (f) of Section 12.5 of the Employment Agreement for the Salary Payment and
Base Bonus Amount.
(d) The “Applicable Percentage” shall mean the greater of Two Percent (2%) or the greatest
percentage of Covered Proceeds to which any of the following executives may be entitled under a
provision liquidating the equivalent employment agreement provision under paragraphs (e) and (f) of
Section 12.5: Xxxx Xxxxxxx, Xxxxxxxx Xxxxxx, or Xxxxx Torino.
5. Return of Property and Records. Executive hereby represents and acknowledges that
as of the Effective Date (other than for the Office Furniture he is permitted to receive under
Section 2 hereof) he has returned to the Company any and all property of the Company and its
current and former subsidiaries or other direct or indirect affiliates, and has returned or
destroyed any and all Records (as defined in Section 11.2 of the Employment Agreement) in
accordance with the provisions of Section 11.2 of the Employment Agreement. Executive represents
and acknowledges that he has no outstanding personal expenses charged to credit cards of the
Company or any of its subsidiaries.
6. Cooperation. Executive agrees to make himself reasonably available and to
cooperate with the Company and its subsidiaries as requested in connection with any regulatory
matters, action, claim, lawsuit or proceeding relating to matters of which he has personal
knowledge or which relate to or arise out of the business he conducted or was responsible for on
behalf of the Company and its subsidiaries. In this regard, such inquiries by the Company and its
subsidiaries and assistance and cooperation by Executive shall be made or rendered at reasonable
times and places and during regular business hours taking into account Executive’s work schedule
and personal and professional commitments. The Company agrees to provide
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Executive reasonable notice in the event his assistance is required. The Company shall
reimburse Executive for all reasonable travel costs and reasonable legal fees (to the extent the
Company reasonably believes and expressly agrees that separate representation is warranted) he may
incur as a result of providing such assistance, provided that the Company receives proper
documentation with respect to all claimed expenses. Further, upon reasonable advance notice from
the Company, Executive shall make himself reasonably available to provide consulting services to
the Company and its subsidiaries for such period and upon such terms as may be mutually agreed by
the Company and Executive, provided, however, that Executive shall be entitled to charge at the
rate of $750 per hour for the services he renders.
7. Non-disparagement. Executive, on behalf of himself, his agents, attorneys, heirs,
executors, administrators, affiliates and assigns, agrees that he shall not at any time engage in
any form of conduct, or make any statements or representations, whether in writing or orally, that
disparage or otherwise impair the reputation, goodwill or commercial interests of the Company, its
management, stockholders, subsidiaries, and/or other direct or indirect affiliates. Likewise, the
Company and its subsidiaries, and its and their respective directors and senior management shall
not at any time engage in any form of conduct, or make any statements or representations, whether
in writing or orally, that disparage Executive, his reputation and/or his business. Notwithstanding
the foregoing, nothing in this Section 7 shall prevent any person from making any truthful
statement to the extent (i) necessary with respect to any litigation, arbitration or mediation
involving this Agreement, including, but not limited to, the enforcement of this Agreement or (ii)
required by law or by any court, arbitrator, mediator or administrative or legislative body
(including any committee thereof) with apparent jurisdiction to order such person to disclose or
make accessible such information. Each of the parties agrees to notify the other of any statement
that is required to be made as provided in the preceding sentence. Such notice shall be given as
much in advance of the making of such statement as is reasonably possible.
8. Nondisclosure of Confidential Information. Executive acknowledges that during his
employment with the Company and its subsidiaries he had access to trade secrets and confidential
and proprietary information of the Company and its subsidiaries (“Confidential Information”), as
set forth in his Employment Agreement. Executive hereby confirms the applicability of Sections
11.1 and 11.2 of his Employment Agreement, which are hereby incorporated herein by reference. For
the purposes of this Agreement, Confidential Information shall include, without limitation,
Executive Work Product. “Executive Work Product” shall include rights to all materials,
information and other items created, prepared, derived or developed in connection with or arising
from Executive’s employment relationship with the Company and its subsidiaries, whether
individually or jointly with others, whether original or considered enhancements, improvement or
modifications, whether or not completed, and whether or not protectable as trade secrets, service
or trademarks, or through patent, copyright, mask work or any other intellectual, industrial or
other form of property protection or proprietary rights. For the purpose of clarification, the
Company acknowledges that Executive was hired for his expertise in connection with the planning,
development, and operation of hotel and hotel/casino properties, and that the Company is only
entitled to retain the Executive Work Product produced while he was an employee, and that the
intellectual expertise and contacts (including, without limitation, programming ratios, formulas,
methodologies, industry relationships and personal contacts) that he had developed over the course
of his career are not deemed to be Executive Work Product.
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9. Injunctive Relief.
(a) Each party acknowledges that a breach of Section 7 of this Agreement will cause the other
party great and irreparable harm, for which the injured party will have no adequate remedy at law,
and that in addition to all other rights and remedies that the injured party may have, the injured
party shall be entitled to obtain injunctive relief and other equitable relief to prevent a breach
or further breach of such sections of this Agreement (without having to prove actual damages or an
inadequate remedy at law and without any requirement for the securing or posting of any bond).
(b) Executive acknowledges that and understands that any breach of Section 8 of this Agreement
will cause the Company great and irreparable harm, for which the Company will have no adequate
remedy at law, and that in addition to all other rights and remedies that the Company may have, the
Company shall be entitled to obtain injunctive relief and other equitable relief to prevent a
breach or further breach of such sections of this Agreement (without having to prove actual damages
or an inadequate remedy at law and without any requirement for the securing or posting of any
bond).
10. Indemnification. The Company shall indemnify the Executive against all losses,
claims, expenses, or other liabilities of any nature arising by reason of the fact that he: (a) is
or was a director, officer, employee, or agent of the Company or any of its subsidiaries or
affiliates; or (b) while a director, officer, employee or agent of the Company or any of its
subsidiaries or affiliates, is or was serving at the request of the Company as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar functionary of another
corporation, partnership, joint venture, trust, employee benefit plan or other entity, in each case
to the fullest extent permitted under the Delaware General Corporation Law, as the same exists or
may hereafter be amended. Without limiting the generality of the foregoing, the Executive shall be
entitled in connection with his former employment and in connection with his former services as an
officer and/or director of the Company and an officer of its subsidiaries to the benefit of the
provisions relating to indemnification and advancement of defense costs and expenses contained in
the bylaws and certificate of incorporation of the Company, each in effect as of the Effective Date
and thereafter as may be amended from time to time (not including any amendments or additions that
limit or narrow, but including any that add to or broaden, the protection afforded to the
Executive), to the fullest extent permitted by applicable law. The Company shall advance to the
Executive all costs of investigation or defense incurred by the Executive in connection with any
pending or threatened claim for which the Executive may be entitled to indemnification hereunder,
provided that the Executive shall agree to return to the Company any such advanced amounts, without
interest, if it is determined in a final, non-appealable judgment by a Court of competent
jurisdiction that the Executive is not entitled to indemnification by the Company for losses
incurred in connection with such claim. The indemnification obligations of the Company shall
survive from the Effective Date of this Agreement and continue until three (3) months after the
expiration of any applicable statute of limitations with respect to any claim made against the
Executive for which the Executive is or may be entitled to indemnification (the “Survival
Period”), and shall survive after the Survival Period with respect to any indemnification claim
as to which the Company has received notice on or prior to the end of the Survival Period. The
Company’s belief regarding a statute of limitations applicable to a claim, any position taken by
the Company in response to a claim, or the determination of any judicial, quasi-judicial, or
arbitral body in connection with a claim and any statute of limitations applicable to a claim(s)
shall in no event relieve the Company from its obligation to indemnify the Executive. Anything
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in this Agreement to the contrary notwithstanding, this Section 10 shall survive the
termination of this Agreement for any reason.
11. Releases and Waivers.
(a) Release of the Company. In exchange for good and valuable consideration provided
herein, Executive, with the intention of binding himself, his agents, attorneys, heirs, executors,
administrators, affiliates and assigns, does hereby irrevocably and unconditionally forever release
and discharge the Company, and its current and former subsidiaries, parents and other direct or
indirect affiliates, as well as each of their respective stockholders, partners, heirs, executors,
administrators, agents, employees, officers, directors, successors, insurers, assigns and
attorneys, of and from any and all manner of actions, cause or causes of action, suits, debts, sums
of money, costs, interests, attorneys’ fees, liabilities, contracts, accounts, reckonings, bonds,
bills, specialties, covenants, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, charges, claims, counterclaims and demands, whatsoever, in law or in equity
or otherwise, that Executive now has or may have, whether mature, direct, derivative, subrogated,
personal, assigned, both known and unknown, foreseen or unforeseen, contingent or actual,
liquidated or unliquidated, arising with respect to any matter, including without limitation his
employment with the Company and its subsidiaries or his services as a director of the Company or
the termination of such employment and services, through the Effective Date, or arising thereafter
with respect to his employment with the Company and its subsidiaries and his services as a director
of the Company prior to the Effective Date or the termination of such employment and services.
Executive hereby expressly waives the benefits of any statute or rule of law that, if applied to
this release, would otherwise exclude from its binding affect any claims not now known by Executive
to exist. The foregoing release of claims by Executive includes, but is not limited to, any and
all claims under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981a et seq., Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. §2601 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., the Xxxxxxxx-Xxxxx Act of 2002, the New York State Human Rights
Law, the New York City Human Rights Law, or of any other similar federal, state, or municipal
statutes or ordinances prohibiting discrimination or pertaining to employment, and any contract,
tort, or common law theories with respect to Executive’s employment with the Company and its
subsidiaries or the termination of his employment with the Company and its subsidiaries. Nothing
herein will release the Company from any claims or damages based on any right Executive may have
under this Agreement.
(b) Release of Executive. As a material inducement to Executive to enter into this
Agreement, the Company, on behalf of itself and its current and former subsidiaries, parents and
other direct or indirect affiliates, as well as each of their respective stockholders, partners,
heirs, executors, administrators, agents, employees, officers, directors, successors, insurers,
assigns and attorneys does hereby irrevocably and unconditionally forever release and discharge
Executive and his agents, attorneys, heirs, executors, administrators and assigns of and from any
and all manner of actions, cause or causes of action, suits, debts, sums of money, costs,
interests, attorneys’ fees, liabilities, contracts, accounts, reckonings, bonds, bills,
specialties, covenants, controversies, agreements, promises, variances, trespasses, damages,
judgments, executions, charges, claims, counterclaims and demands, whatsoever, in law or in equity
or otherwise, that
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the Company now has or may have, whether mature, direct, derivative, subrogated, personal,
assigned, both known and unknown, foreseen or unforeseen, contingent or actual, liquidated or
unliquidated, arising with respect to any matter, including without limitation his employment with
the Company and its subsidiaries or his services as a director of the Company or the termination of
such employment and services, through the Effective Date, or arising thereafter with respect to his
employment with the Company and its subsidiaries and his services as a director of the Company
prior to the Effective Date or the termination of such employment and services, and, including
specifically, without limitation and without limiting the generality of the foregoing, the
provisions of Section 14 (Non-competition) of the Employment Agreement. Nothing herein will
release Executive from any claims or damages based on any right the Company may have under this
Agreement.
12. No Actions:
(a) Executive, for himself, his issue, heirs, representatives, successors, agents, executors,
administrators or assigns, hereby covenants and represents that he has not instituted, and shall
not institute, any complaints, claims, charges or lawsuits, with any governmental agency or any
court or other tribunal, against the Company or any of its subsidiaries, by reason of any claim
present or future, known or unknown, arising from or related in any way to his employment with the
Company and its subsidiaries or the termination of such employment, or any relationship,
association, or transaction to date between the parties hereto or any of their predecessors or
their respective agents, employees or officers. This covenant shall not apply to actions for
breach of this Agreement.
(b) Company, for itself, successors, agents, executors, administrators or assigns, hereby
covenants and represents that it has not instituted, and shall not institute, any complaints,
claims, charges or lawsuits, with any governmental agency or any court or other tribunal, against
the Executive or any of its subsidiaries, by reason of any claim present or future, known or
unknown, arising from or related in any way to his employment with the Company and its subsidiaries
or the termination of such employment, or any relationship, association, or transaction to date
between the parties hereto or any of their predecessors or their respective agents, employees or
officers. This covenant shall not apply to actions for breach of this Agreement.
13. Termination of Employment Agreement; Entire Agreement. The Company and Executive
agree that as of the Effective Date the Employment Agreement shall terminate and shall be null and
void. The Company, on behalf of itself and its subsidiaries, and Executive each represent and
warrant that no promise or inducement has been offered or made except as herein set forth and that
the consideration stated herein is the sole consideration for this Agreement. This Agreement is a
complete and entire agreement and states fully all agreements, understandings, promises and
commitments as between the Company and its subsidiaries and Executive and as to the termination of
the Employment Agreement and the termination of the Executive’s employment relationship with the
Company and its subsidiaries; and except as expressly set forth to the contrary herein, this
Agreement supersedes and cancels any and all other negotiations, understandings and agreements,
oral or written, respecting the subject matter hereof.
14. No Prior Transfer. Each party represents and warrants to the other that it has
not sold, assigned, transferred, conveyed, or otherwise disposed of to any third party, by
operation of
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law or otherwise, any action, cause of action, suit, debt, obligations, account, contract,
agreement, covenant, guarantee, controversy, judgment, damage, claim, counterclaim, liability or
demand of any nature whatsoever relating to any matter covered or released by this Agreement.
15. Successors and Assigns. Except as otherwise expressly provided herein, this
Agreement will be binding upon and inure to the benefit of the parties and their respective
successors, heirs (in Executive’s case) or assigns. To the extent permitted by law, the Company
shall require any successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the Company to assume and
agree to perform this Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this Agreement, “the
Company” will mean the Company as defined above and any successor to its business and/or assets
which by reason hereof assumes and agrees to perform this Agreement by operation of law or
otherwise. In the event of Executive’s death or a judicial determination of his incompetence, with
respect to any payments payable or due hereunder, references in this Agreement to Executive will be
deemed to refer, where appropriate, to his legal representatives or his beneficiary or
beneficiaries. None of Executive’s rights or obligations under this Agreement may be assigned or
delegated by him.
16. Choice of Law. This Agreement shall be interpreted, construed, and enforced in
accordance with the internal laws of the State of Nevada, without regard to conflicts of law
principles.
17. Arbitration. The Company and Executive agree that Section 16.1 (Arbitration of
Monetary Disputes) in its entirety from the Employment Agreement is hereby incorporated by
reference herein and made a part hereof as if fully set forth herein. The Company and Executive
agree to comply with said Section in all respects. Any defined term used in said Section shall have
the meaning ascribed to such term in the Employment Agreement.
18. Amendment; Waiver. This Agreement may not be amended except by mutual written
agreement of Executive and an authorized officer of the Company. No waiver by any party to this
Agreement at any time of any breach by the other party of, or non-compliance with, any condition or
provision of this Agreement to be performed by such other party will be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent time. Any waiver
to be effective must be in writing and signed by the party against whom it is being enforced.
19. Counterparts. This Agreement may be executed and delivered (including by
facsimile, PDF or other electronic transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same agreement.
20. Notices. All notices, requests, consents and other communications, required or
permitted to be given hereunder, shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by prepaid telegram, or mailed first class, postage prepaid, by
registered or certified mail, as follows (or to such other or additional address as either party
shall designate by notice in writing to the other in accordance herewith):
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If to the Company:
|
FX Real Estate and Entertainment Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: | |
| Xxxxxxxx X. Xxxxxx, General Counsel, Telephone: (000) 000-0000/Fax: (000) 000-0000 | ||
with a copy to:
|
Xxxxxx X. Xxxxx, Esq., Xxxxxxxxx Traurig, 0000 Xxxxxxxx Xxxxxx, Xxxxx, XX 00000, Telephone: | |
| (000) 000-0000/Fax: (000) 000-0000 | ||
If to the Executive:
|
Xxxxx X. Xxxxx, 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, Telephone: | |
| (000) 000-0000/Fax: (000) 000-0000 | ||
with a copy to:
|
Xxxxxxx Xxxx, Esq., Jolley Urga Xxxxx Xxxxxxxx & Xxxxxxxx, 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, Telephone: (000) 000-0000, Fax: (000) 000-0000 |
21. Nonadmissibility. Nothing contained in this Agreement, or the fact of its
submission to a party, shall be admissible evidence against the Company or its subsidiaries or
Executive in any judicial, administrative, or other legal proceeding (other than an action for
breach of this Agreement), or be construed as an admission of any liability or wrongdoing on the
part of the Company or its subsidiaries or Executive of any violation of federal or state statutory
or common law or regulation.
22. Captions. This Agreement contains section headings for reference only. The
headings in no way affect the meaning or interpretation of this Agreement.
23. Severability. If any provision of this Agreement is held to be invalid, illegal
or unenforceable (in whole or part), such provision will be deemed modified to the extent, but only
to the extent, of such invalidity, illegality or unenforceability and the remaining provisions will
not be affected thereby. If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any applicable jurisdiction, neither (i)
the legality, validity or enforceability in that jurisdiction of any other provisions of this
Agreement nor (ii) the legality, validity or enforceability under the law of any other applicable
jurisdiction of that or any other provisions of this Agreement, will be affected or impaired.
24. Effective Date. This Agreement shall become effective upon the eighth calendar
day after it is signed and delivered by Executive (the “Effective Date”).
25. Meaning of Signing This Agreement. By signing and delivering this Agreement,
Executive expressly acknowledges and agrees that (a) he has had up to twenty-one (21) days before
signing and delivering this Agreement to carefully read and fully consider the terms of this
Agreement; (b) he has been advised in writing to discuss this Agreement with an attorney before
signing and delivering it; (c) he has agreed to this Agreement knowingly and voluntarily and was
not subjected to any undue influence or duress; (d) he may revoke his acceptance of this Agreement
within seven (7) calendar days after he signs and delivers it by sending written notice of
revocation in accordance with the notice provisions hereof; and (e) on the eighth (8th) calendar
day after he signs and delivers this Agreement, this Agreement becomes effective and enforceable.
Signatures on following page
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Employment Separation
Agreement and Release as of the day and year set forth below.
| FX Real Estate and Entertainment Inc. | ||||||||
By:
|
/s/ Xxxxxxxx X. Xxxxxx
|
/s/ Xxxxx X. Xxxxx
|
||||||
Name:
|
Xxxxxxxx X. Xxxxxx | Xxxxx X. Xxxxx | ||||||
Title:
|
Executive Vice President | Date: April 30, 1009 | ||||||
Date:
|
April 30, 2009 | |||||||
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EXHIBIT A
Office Furniture
Office Furniture
| Quantity | Item | |
8
|
Workstations (Hard drive, Monitor, Keyboard, Printer) |
|
8
|
Office Furniture (Desk, Credenza (4), File Cabinet, Chairs) |
|
4
|
Lobby Chairs | |
2
|
Lobby Sofas | |
1
|
Coffee Table | |
1
|
Safe | |
2
|
TV & A/V Components | |
1
|
Polycom Conf. Phone |
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