Exhibit 10.1


 





 


VIA FACSIMILE &

OVERNIGHT COURIER


 


January 13, 2009


 


Mr. Robert Earl


OpBiz, LLC d/b/a Planet Hollywood
Resort & Casino

3667 Las Vegas Blvd. South


Las Vegas, NV 89109


 


Re: Resignation from Board of
Managers


 


Dear Robert,


 


This letter shall serve as formal
notification of my resignation as a member of the Board of Managers of OpBiz,
LLC (the “Company”) effective January 14, 2009. Although I wish my
resignation to be effective on that date, nothing contained herein should be
construed to be a wavier of any rights or remedies as may be available to me
under the Company’s Operating Agreement, as amended and restated, or governing
law with respect to my position as a member of the Board of Managers prior to
this notification.


 


If you should have any questions, or if I can
assist with any paperwork you may require in effectuating my resignation,
please do not hesitate to contact me.


 


	
  Sincerely,

  	
   

  
	
   

  	
   

  
	
  /s/ Michael V. Mecca

  	
   

  
	
  Michael V. Mecca

  	
   

  



 

















 


SEPARATION
AGREEMENT


 


This Separation Agreement (“Agreement”) is
made as of the 
                 day
of
January                  ,2009
(the “Effective Date”) by and between OpBiz,
LLC (“Company”),  a wholly owned subsidiary of
MezzCo, LLC (“MezzCo), and Michael Mecca (“Executive”).


 


BACKGROUND


 


The Company and the
Executive are parties to an Employment Agreement dated as of May 11, 2003
as Amended and Restated with an effective date of October 1, 2007 (the “Employment
Agreement”);  and


 


The Executive and the
Company have agreed to a sooner termination of the Employment Agreement and
Executive’s employment with the Company on the terms and conditions set forth
herein.


 


NOW THEREFORE, in
consideration of the mutual covenants and conditions herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by all of the parties hereto, the parties hereby agree to the
following terms and conditions:


 


1.                                       Separation. The parties mutually agree that Executive’s employment and position
with the Company, its parent, subsidiary and affiliated entities will terminate
effective Wednesday, January 14, 2009 (the “Separation
Date”).


 


2.                                       Consideration. As consideration for Executive’s agreement
to the terms and conditions herein:


 


(a)                                  The Company shall pay Executive a lump sum
severance payment on the Separation Date of Three Hundred Forty Three Thousand,
One Hundred Sixty Eight Dollars and 60/100 ($343,168.60), less appropriate
taxes and withholdings. Such payment shall be reported on an Internal Revenue
Service Form W-2; and


 


(b)                                 The Company shall continue to extend
Executive’s health and medical insurance coverage for a ninety (90) day period
from the Separation Date whether as a continuation of Executive’s status or
reimbursement of Executive’s COBRA costs, as applicable and appropriate;


 


as full and final payment of amounts due and owing under  the Employment Agreement.


 


3.                                       No Other Sums Owed. Executive hereby acknowledges and agrees
that in exchange for the lump sum severance payment and extension of health and
medical insurance coverage as described in Section 2 above, the Company is
under no further obligation to make


 


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any payments to Executive, and that Executive
is not entitled to any further compensation, benefits, severance pay, other
payment or privileges from the Company.


 


4.                                       Stock Options. Company acknowledges that, subject to the
approval of Nevada Gaming and any other applicable regulatory approvals,
Executive has received stock options representing three percent (3%) of the outstanding
equity of MezzCo, LLC, in which Executive is fully vested. Such options are
subject to and governed by the Class B Unit Option Plan (the “Option Plan”) and  the Separation
Date shall be considered a termination of continuous service as a Service Provider
under the Plan. Executive acknowledges that
Executive shall have ninety (90) days from the Separation Date to exercise
Executive’s options by way of payment, by cash or by check, based on a strike
price of One Million Dollars and No/100 ($1,000,000) per One Percent (1%).
Options not exercised by the Executive prior to the ninetieth (90th) day from the Separation Date as set forth herein will be forfeited
back to the Company.


 


5.                                       General Release. Executive does, for himself and for his
heirs, successors and assigns, hereby release and forever discharge the Company
and its parent, subsidiary and affiliated companies and entities, and its and
their respective managers, officers, shareholders agents, employees and
assigns, past or present, from any and all claims, demands, actions, causes of
action, suits at law or equity, expenses, attorneys’ fees or other liabilities
of any kind or nature whatsoever that Executive has or may have which may have
arisen at any time up to and including the Separation Date, known or unknown,
that resulted from or are otherwise connected with, either directly or
indirectly, to Executive’s employment with the Company, including, without
limitation, the termination of that employment and/or the Employment Agreement.
Executive further acknowledges that this release includes a specific release of
known and unknown claims, including those that may arise as a result of
different or additional claims or facts Executive may hereafter discover.


 


Released claims include,
without limitation, any and all claims of any kind or nature whatsoever arising
under foreign, federal,
state or local constitution, statute, ordinance, regulation, common law, or
other laws prohibiting employment discrimination on any prohibited basis,
including, without limitation, claims under Title VII of the Civil Rights Act
of 1964, as amended; the Civil Rights Act of 1991; the Equal Pay Act; the Civil
Rights Act of 1866; 42 U.S.C. § 1981; the Americans with Disabilities Act; the
Family and Medical Leave Act; the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. § 621, et seq.;  the Fair Labor Standards Act, 29
U.S.C. § 207; the Employee Retirement
Income Security Act; the National Labor Relations Act; the Labor Management
Relations Act; the Worker Adjustment and Retraining Notification Act; Chapter
608, Compensation, Wages and Hours, of the Nevada Revised Statutes; Chapter
613, Employment Practices, of the Nevada Revised Statutes or any other federal,
state or local law prohibiting employment discrimination or otherwise
regulating employment including, without limitation, any claims relating to
retaliation, harassment, breach of express or implied contract, violation of
public policy, negligence or other tortuous actions or failures to act and any
claim or claims for severance pay, bonus or similar benefit, retirement,
retirement bonus, life insurance, health or medical insurance, reimbursement of
health or medical costs, workers’ compensation or disability.


 


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6.                                       ADEA Release. Executive expressly acknowledges and agrees
that this Agreement includes a waiver and release of all claims which he has or
may have under the Age Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 621, et seq. (“ADEA”).


 


7.                                       Board Position. Simultaneous with the execution of this
Agreement, Executive has tendered Executive’s resignation as a member of the
Company’s Board of Managers.


 


8.                                       Non-Disparaging Remarks / Confidentiality. Executive agrees that Executive will not
make any disparaging or untruthful remarks about or concerning Company, its
officers, directors, employees or agents, whether acting in their individual or
representative capacity and Company shall not make any disparaging or
untruthful remarks concerning Executive. Company and Executive shall, prior to
the Separation Date, mutually agree upon a positioning statement / press
position concerning Executive’s separation from the Company.


 


Executive agrees that, as a
result of his employment by Company, he has been exposed to confidential
information that is not generally known to the public, all of which information
is owned by Company. Company’s confidential information includes, without
limitation, information relating to its finances, business and strategic plans,
unannounced acquisition and/or investment prospects, trade secrets, know-how,
procedures, purchasing, accounting, marketing, sales, customers and employees.
Executive agrees that for as long as such information is not made public by
Company, Executive shall hold such information in strict confidence and not
disclose or use it except as specifically authorized by Company and for
Company’s benefit. Further, Company and Executive each agree that the
consideration provided to Executive under this Agreement is confidential and
that neither shall disclose said consideration to persons outside the Company,
except that Executive may show the Agreement to Executive’s spouse, attorneys
and tax consultants, who have agreed to be bound by these provisions; provided, however, that nothing herein shall prohibit or
restrict Company or Executive (or their respective attorneys) from making
disclosures related to this Agreement as required by law or the United States
Securities and Exchange Commission or any other federal or state regulatory or
law enforcement agency.


 


9.                                       Return of Property. Executive agrees that Executive will on the
Separation Date return to
Company all of Company’s property, including all physical property (computer
disks, access cards, etc.) as well as any and all documents, data, plans, or
other information, whether on paper or in electronic form.


 


10.                                 ADEA Waiver. Executive has been advised to consult a
lawyer before signing this Agreement. Executive has been given an opportunity
to consider this Agreement for a period of at least twenty-one (21) days, and
has voluntarily and freely executed this Agreement prior to the expiration of
the twenty-one (21) day period, and has voluntarily and freely waived the right
to consider this Agreement for the full twenty-one (21) day period. Executive
will have the right to revoke the waiver and release of claims under the ADEA
within seven (7) days of signing this Agreement, and this Agreement shall
not become effective or enforceable until this


 


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revocation period has expired. In the event
that Executive desires to exercise such right to revoke within the seven
(7) day period, in order to do so, Executive shall immediately return to
the Company the lump sum severance payment described in Section 2 above.


 


11.                                 Severability. In the event that any provision hereof
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect without
said provision.


 


12.                                 Entire Agreement. This Agreement represents the entire
agreement and understanding between the Company and Executive concerning
Executive’s employment and Board of Manager relationship with the Company and
subsequent separation, and supersedes and replaces any and all prior agreements
and understandings concerning Executive’s employment relationship with the
Company.


 


13.                                 Miscellaneous. This Agreement may only be amended, canceled
or discharged in writing signed by Executive and the Company. This Agreement
shall be construed in accordance with and governed by the laws of the State of
Nevada. Time is of the essence of this Agreement and the performance by each
party of its or his duties and obligations hereunder. The prevailing party in
any litigation, arbitration or mediation relating to this Agreement shall be
entitled to recover its reasonable attorney’s fees from the other party. This
Agreement may be signed in more than one counterpart, in which case each
counterpart shall constitute an original of this Agreement. Facsimile
signatures shall be treated as original signatures for all purposes.


 


IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the day and year first set forth
above.


 


	
  OPBIZ,
  LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Mark
  Helm

  	
   

  
	
  By: Mark
  Helm

  	
   

  
	
  Dated: 1/18/09

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MICHAEL
  V. MECCA

  	
   

  
	
   

  	
   

  
	
  /s/ Michael
  V. Mecca

  	
   

  
	
  Dated:

  	
   

  



 


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