EXHIBIT 10.1(c)
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT")
is made and entered into as of the 11th day of March 2002, by and between
AMERISTAR CASINOS, INC., a Nevada corporation, with its principal offices
located at 3773 Howard Hughes Parkway, Suite 490S, Las Vegas, Nevada 89109 (the
"COMPANY"), and GORDON R. KANOFSKY (the "EXECUTIVE").
RECITALS
WHEREAS, the Executive has been employed by the Company as Senior Vice
President of Legal Affairs since September 1, 1999, pursuant to a written
Executive Employment Agreement made and entered into as of August 23, 1999 and
amended and restated as of October 5, 2001 (the "PRIOR AGREEMENT"); and
WHEREAS, the Company and the Executive desire to amend and restate the
Prior Agreement 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.
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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;
(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) 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;
(e) 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;
(f) 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
(g) 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 any reason to constitute at least a majority of the Board of
Directors of the Company; provided, however, that any individual
becoming a director
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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 to fifty percent (50%) or more
of the shares of the Company Common Stock then outstanding or
(ii) the proportionate voting power represented
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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, Craig H. Neilsen and Ray
Neilsen and their respective estates, spouses, heirs, ancestors,
lineal descendants, step children, legatees and legal
representatives, and the trustees of any bona
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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 "COMPETING BUSINESS" shall mean any Person engaged in the casino
gaming industry directly or through an Affiliate or subsidiary.
1.9 "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.
1.10 "DEFERRED COMPENSATION PLAN" shall mean the Company's Deferred
Compensation Plan, as in effect on the date of this Agreement and as it and
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.
1.11 "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
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
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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.
1.12 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.13 "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 the requirement that the
Executive report to any person other than 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;
(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;
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(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.
1.14 "INDEMNIFICATION AGREEMENT" means that certain Indemnification
Agreement dated August 23, 1999, by and between the Company and the
Executive.
1.15 "PERSON" shall mean any individual, firm, partnership,
association, trust, company, corporation, limited liability company or
other entity.
1.16 "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.
1.17 "RESTRICTION PERIOD" shall mean the period ending twenty-four
(24) months after the termination or expiration of the Term of Employment,
regardless of the reason for such termination or expiration; provided,
however, that the 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, within twelve
(12) months following a Change in Control.
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1.18 "TERM OF EMPLOYMENT" shall mean the period specified in Section
2.2.
2. TERM OF EMPLOYMENT, POSITION AND RESPONSIBILITIES.
2.1 EMPLOYMENT CONTINUED. The Company hereby continues the employment
of the Executive, and the Executive hereby accepts continued 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.
2.2 TERM OF EMPLOYMENT. Unless earlier terminated pursuant to the
provisions of this Agreement, the initial Term of Employment shall
terminate at the close of business on December 31, 2002; 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 13 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 December 31, of that year and in that event that date shall be
the Executive's last day of employment. The Executive's commencement date
for employee benefit purposes shall be deemed to be the commencement date
of the Executive's employment by the Company under the Prior Agreement.
2.3 TITLE AND RESPONSIBILITIES. During the Term of Employment, the
Executive shall be employed as Executive Vice President of the Company with
responsibility for supervision of business development, strategic
transactions, legal, governmental affairs, compliance, regulatory and
various administrative functions for the Company and will perform such
other duties and services as, from time to time, are reasonably required by
the Company's Chief Executive Officer or Board. The Executive shall be
appointed by the Board as a corporate executive officer of the Company at
all times during the Term of Employment. The Executive will report directly
to the Chief Executive Officer of the Company. During the Term of
Employment, the Company will not reduce the title or responsibilities of
the Executive. 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. Anything herein to the contrary notwithstanding, 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. 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.
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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 and Fifty Thousand
Dollars and 00/100 ($350,000), subject to reduction for any and all
applicable federal, state, and local withholding, social security, 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.
3.3 DEFERRED COMPENSATION. The Executive shall be eligible to
participate in the Company's Deferred Compensation Plan pursuant to the
terms of that plan.
4. EMPLOYEE BENEFIT PROGRAMS.
4.1 PENSION AND WELFARE BENEFIT PLANS. In addition to the benefits
provided for in Section 3.3, 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 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
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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 next sentence. 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 ADDITIONAL BENEFITS. Notwithstanding Section 4.1 and in addition
to the benefits provided for in Section 3.3, the Company shall provide the
Executive during the Executive's Term of Employment with (a) supplemental
term life insurance coverage in an aggregate amount of not less than One
Million Dollars and 00/100 ($1,000,000) through individual term and/or
group term policies, and (b) group health supplemental insurance coverage
through the Company's Exec-U-Care Medical Plan, or pursuant to such plan or
plans as the Company may select from time to time, provided that such plan
or plans shall provide benefits substantially similar to those generally
available to senior executives of the Company, and shall be fully paid for
by the Company. 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, 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;
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(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 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 in Section
16, 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) any deferred compensation or bonuses, including interest or
other credits on the deferred amounts, to the extent provided in
written plan documents and agreements;
(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, and as further set forth in Sections 4.1 and
4.2 of this Agreement; and
(g) any and all amounts owed by the Company under Sections
6.1(a), 6.1(b), 6.1(d) and 6.1(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
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Company under Sections 6.1(c) and 6.1(f) 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) any deferred compensation or bonuses, including interest or
other credits on the deferred amounts, to the extent provided in
written plan documents and agreements;
(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, and as further set forth in Sections 4.1 and
4.2 of this Agreement; and
(g) any and all amounts owed by the Company under Sections
6.2(a), 6.2(b), 6.2(d), and 6.2(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 6.2(c) and 6.2(f) 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.
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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 1.13 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 two (2) 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) any deferred compensation or bonuses, including interest or
other credits on the deferred amounts, to the extent provided in
written plan documents and agreements;
(e) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
(f) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(g) 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
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the terms and conditions of such documents and agreements, and as
further set forth in Sections 4.1 and 4.2 of this Agreement;
(h) 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
(i) any and all amounts owed by the Company under Sections
6.4(b), 6.4(c), 6.4(e) and 6.4(f) 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(d), 6.4(g) and 6.4(h)
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 two (2) 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) any deferred compensation or bonuses, including interest or
other credits on the deferred amounts, to the extent provided in
written plan documents and agreements;
(e) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
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(f) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(g) 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 as further set forth in Sections 4.1 and
4.2 of this Agreement;
(h) 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
(i) any and all amounts owed by the Company under Sections
6.5(b), 6.5(c), 6.5 (e) and 6.5(f) 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(d), 6.5(g) and 6.5(h)
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 two (2) times his or her annualized Base Salary, without
regard to continued employment or
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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.
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) any deferred compensation or bonuses, including interest or
other credits on the deferred amounts, to the extent provided in
written plan documents and agreements;
(e) reimbursement for expenses incurred but not paid prior to
such termination of employment pursuant to Section 5.1;
(f) an amount equal to any accrued but unused vacation or other
paid time off as of the termination of employment;
(g) 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 as further set forth in Sections 4.1 and
4.2 of this Agreement;
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(h) 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
(i) any and all amounts owed by the Company under Sections
7.2(b), 7.2(c), 7.2 (e) and 7.2(f) 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(d), 7.2(g) and 7.2(h)
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.
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
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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.
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.
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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 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;
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(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
(d) 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) provide services for
any other Person, or (ii) terminate and/or leave such employment, or
(iii) 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.
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11.3 PROHIBITION ON INSIDER TRADING. The Executive hereby agrees to
comply with and be bound by the Company's Insider Trading Policy as in
effect from time to time, the current version of which has been delivered
to the Executive.
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, 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 Los Angeles, California or Las
Vegas, Nevada, as the arbitrator may determine shall be the more convenient
forum. 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.
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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 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 14.
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. 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.
3773 Howard Hughes Parkway
Suite 490 South
Las Vegas, Nevada 89109
Attention: Craig H. Neilsen
President and Chief Executive Officer
If to the Executive: Gordon R. Kanofsky
4273 Aleman Drive
Tarzana, California 91356-5405
14. 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.
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15. 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.
16. 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 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.
17. 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 17 are in addition to the
survivorship provisions of any other Section of this Agreement.
18. 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.
19. ENTIRE AGREEMENT. This Agreement and the Indemnification Agreement and
any documents contemporaneous with this Agreement 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.
20. 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.
21. 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
-23-
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.
22. 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, scope
of activities and geographic area will be substituted for any such restrictions
held unenforceable.
23. 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 Clark County, Nevada, to resolve such dispute or
controversy; provided, however, that nothing in this Section 23 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.
24. 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.
25. HEADINGS. The headings of the Sections and Subsections contained in
this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any provision of this Agreement.
26. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same Agreement with the same effect as if all Parties had signed the same
signature page. Any signature page of this Agreement may be detached from any
counterpart of this Agreement and reattached to any other counterpart of this
Agreement identical in form hereto but having attached to it one or more
additional signature pages.
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27. 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
(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/ THOMAS M. STEINBAUER
-----------------------------------
Name: Thomas M. Steinbauer
Title: Senior Vice President of Finance
EXECUTIVE:
/s/ GORDON R. KANOFSKY
----------------------------------------
GORDON R. KANOFSKY
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EXHIBIT A
SEPARATION AGREEMENT
AND
GENERAL AND SPECIAL RELEASE
This Separation Agreement and General and Special Release ("Agreement") is
made by and between GORDON R. KANOFSKY (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 11, 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, 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 executing this release, which if known by the
Executive must or might have materially affected his or her settlement with the
Company.
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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.
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
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the Executive
Dated at
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AMERISTAR CASINOS, INC.
By
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Its
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