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8-K - FORM 8-K - Gold Merger Sub, LLC | c14780e8vk.htm |
EX-99.1 - EXHIBIT 99.1 - Gold Merger Sub, LLC | c14780exv99w1.htm |
Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the Agreement) is made this 28th day of March, 2011, by and
between PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the Company), and CARLOS A.
RUISANCHEZ, an individual (Executive), with respect to the following facts and circumstances:
RECITALS
The Company is currently employing Executive as its Executive Vice President, Strategic
Planning and Development pursuant to the terms and conditions of an Amended and Restated Employment
Agreement dated December 22, 2008 (the Employment Agreement).
The Company wishes to have Executive become Executive Vice President and Chief Financial
Officer of the Company on April 1, 2011 and Executive is willing to assume such position, in each
case on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth
herein, the Company and Executive agree as follows:
ARTICLE 1.
EMPLOYMENT AND TERM
1.1 Employment. The Company agrees to engage Executive in the capacity as Executive
Vice President and Chief Financial Officer of the Company effective April 1, 2011, and Executive
hereby accepts such engagement by the Company upon the terms and conditions specified below.
1.2 Term. The term of this Agreement shall commence on April 1, 2011 and, unless
earlier terminated under Article 6 below, shall continue in force until March 31, 2014 (the
Initial Term); provided that commencing on November 30, 2013 and as of November 30 of each year
thereafter (a Renewal Date), this Agreement shall automatically renew for additional one-year
periods (each, a Renewal Period), unless either party gives notice of non-renewal at least one
hundred twenty (120) days prior to the next each Renewal Date. The Term of this Agreement,
including any Renewal Periods, is referred to as the Term.
ARTICLE 2.
DUTIES OF EXECUTIVE
2.1 Duties. Executive shall perform all the duties and obligations generally
associated with the position of Executive Vice President and Chief Financial Officer subject to the
control and supervision of the Companys Chief Executive Officer, and such other executive duties
consistent with the foregoing as may be assigned to him from time to time by the
Company. Executive shall perform the services contemplated herein faithfully, diligently, to
the best of his ability and in the best interests of the Company. Executive shall at all times
perform such services in compliance with, and to the extent of his authority, shall to the best of
his ability cause the Company to be in compliance with, any and all laws, rules and regulations
applicable to the Company of which Executive is aware. Executive shall, at all times during the
Term, in all material respects adhere to and obey any and all written internal rules and
regulations governing the conduct of the Companys employees, as established or modified from time
to time; provided, however, in the event of any conflict between the provisions of this Agreement
and any such rules or regulations, the provisions of this Agreement shall control.
2.2 Location of Services. Executives principal place of employment shall be at the
Companys headquarters in Las Vegas, Nevada, or at such other location as Executive and the Chief
Executive Officer shall agree upon. Executive understands he will be required to travel to the
Companys various operations as part of his employment.
2.3 Exclusive Service. Except as otherwise expressly provided herein, Executive shall
devote his entire business time, attention, energies, skills, learning and best efforts to the
business of the Company. Executive may participate in social, civic, charitable, religious,
business, educational or professional associations so long as such participation does not
materially interfere with the duties and obligations of Executive hereunder. This Section 2.3,
however, shall not be construed to prevent Executive from making passive outside investments so
long as such investments do not require material time of Executive or otherwise interfere with the
performance of Executives duties and obligations hereunder. Executive shall not make any
investment in an enterprise that competes with the Company without the prior written approval of
the Company after full disclosure of the facts and circumstances; provided, however, that this
sentence shall not preclude Executive from owning up to one-half percent (0.5%) of the securities
of a publicly traded entity (a Permissible Investment). During the Term, Executive shall not
directly or indirectly work for or provide services to or, except as permitted above, own an equity
interest in any person, firm or entity engaged in the casino, gaming, card club or horse racing
business. In this regard, and for purposes of this section only, Executive acknowledges that the
gaming industry is national in scope and that accordingly this covenant shall apply throughout the
United States. With the prior approval of the Board of Directors (which approval may subsequently
be revoked by the Board in its discretion) Executive may serve on boards of charitable and not for
profit organizations so long as such activities, individually or in the aggregate do not materially
interfere with Executives duties hereunder.
ARTICLE 3.
COMPENSATION
3.1 Base Salary. In consideration for Executives services hereunder, the Company
shall pay Executive an annual base salary at the rate of Five Hundred Eighty Thousand Dollars
($580,000) per year during each of the years of the Term; payable in accordance with the Companys
regular payroll schedule from time to time (less any deductions required for Social Security,
state, federal and local withholding taxes, and any other authorized or mandated similar
withholdings).
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3.2 Annual and Other Bonuses. Executive shall be entitled to earn bonuses with
respect to each year of the Term during which Executive is employed under this Agreement, with a
targeted bonus of Eighty Percent (80%) of Executives base salary, determined under the Companys
Annual Performance Based Plan for Executive Officers, or any successor Plan (the Bonus Plan).
Any such Bonus shall be structured to comply with Section 162(m) of the Internal Revenue Code
unless otherwise determined by the Committee and shall be based on performance criteria developed
by the Committee. Any such bonus shall be subject to (i) the Executive being employed by the
Company on the day after the end of the Companys fiscal year or such later date as the Bonus Plan
shall specify; and (ii) the Companys Policy on Recovery of Incentive Compensation in Event of
Financial Restatement attached as Appendix A hereto and any other similar policies. Bonuses
relative to partial years shall be prorated. Executive may also receive special bonuses in
addition to his annual bonus eligibility at the discretion of the Board of Directors or the
Committee; it being understood that there is no entitlement thereto hereunder. Any bonuses paid
hereunder shall be paid, in the Companys discretion, in cash and/or restricted stock; provided,
however, that Executives allocation of cash and restricted stock shall be the same as that of
other senior executive officers for the year.
3.3 Equity Awards.
3.3.1 As an inducement to Executive entering into this Agreement, concurrently with the
execution of this Agreement, the Company shall grant Executive an option to purchase 240,000 shares
of the Companys common stock (the Option Grant). Such option shall vest in four equal annual
installments, have a seven year term, with an exercise price equal to the closing price of the
Companys common stock on the date of the Option Grant. The terms of the option shall be subject
to the Option Agreement executed concurrently herewith.
3.3.2 The Option Grant is intended to be the only grant of options, restricted stock units, or
(except as set forth in Section 3.2) restricted stock to Executive during the first two years of
the Initial Term. Thereafter, the Company may grant to Executive options or other equity
compensation pursuant to, and subject to the terms and conditions of, the then current equity
compensation plan of the Company. The Companys Compensation Committee shall set the amount and
terms of such options or other equity compensation.
ARTICLE 4.
EXECUTIVE BENEFITS
4.1 Vacation. In accordance with the general policies of the Company applicable
generally to other senior executives of the Company pursuant to the Companys personnel policies
from time to time, Executive shall be entitled to not less than four (4) weeks vacation each
calendar year, without reduction in compensation. Vacation expense will not accrue and unused
vacation time will not accrue for severance purposes.
4.2 Benefits. Executive shall receive all other such benefits as the Company may
offer to other senior executives of the Company generally under the Company personnel plans,
practices, policies and programs in effect from time to time, such as health and disability
insurance coverage, paid sick leave and fully eligible participation in deferred compensation
plans. The Company shall provide Executive coverage for those benefit items made generally
available to its senior level executive employees that are not currently covered under Executives
plan through his previous employer (e.g. short and long-term disability and so forth) on the same
terms provided to its other senior level executive employees.
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4.3 Indemnification. Executive shall have the benefit of indemnification to the
fullest extent permitted by applicable law, which indemnification shall continue after the
termination of this Agreement for such period as may be necessary to continue to indemnify
Executive for his acts while an officer of the Company. In addition, the Company shall cause
Executive to be covered by the Companys policies of directors and officers liability insurance in
effect from time to time in accordance with their terms, to the maximum extent of the coverage
available for any officer of the Company. In the event of any merger or other acquisition of the
Company, the Company shall, no later than immediately prior to consummation of such transaction,
purchase tail coverage under the officers liability insurance in effect at the time of such
merger or acquisition.
ARTICLE 5.
REIMBURSEMENT FOR EXPENSES
5.1 Executive shall be reimbursed by the Company for all ordinary and necessary expenses
incurred by Executive in the performance of his duties or otherwise in furtherance of the business
of the Company in accordance with the policies of the Company in effect from time to time.
Executive shall keep accurate and complete records of all such expenses, including but not limited
to, proof of payment and purpose. Executive shall account fully for all such expenses to the
Company. No reimbursement will be made later than the close of the calendar year following the
calendar year in which the expense was incurred. Expenses eligible for reimbursement in any one
taxable year shall not affect the amount of expenses eligible for reimbursement in any other
taxable year, and the right to expense reimbursement shall not be subject to liquidation or
exchange for any other benefit.
ARTICLE 6.
TERMINATION
6.1 Termination for Cause. Without limiting the generality of Section 6.3, the
Company shall have the right to terminate Executives employment, without further obligation or
liability to Executive, upon the occurrence of any one or more of the following events, which
events shall be deemed termination for cause (Cause).
6.1.1 Failure to Perform Duties. If Executive neglects to perform the material duties
of his employment under this Agreement in a professional and businesslike manner, other than due to
his Disability (unless such Disability is due to substance or alcohol abuse), after having received
thirty (30) days written notice specifying such failure to perform and a reasonable opportunity to
perform.
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6.1.2 Willful Breach. If Executive willfully commits a material breach of this
Agreement and fails to cure such breach within thirty (30) days of written notice thereof or a
material willful breach of his fiduciary duty to the Company.
6.1.3 Wrongful Acts. If Executive is convicted of a felony or misdemeanor involving
acts of moral turpitude or commits fraud, misrepresentation, embezzlement or other acts of material
misconduct against the Company (including violating or condoning the violation of any material
rules or regulations of gaming authorities which could have a material adverse effect on the
Company) that would make the continuance of his employment by the Company materially detrimental to
the Company.
6.1.4 Failure To Be Licensed or Approved by the Companys Compliance Committee.
Executive shall promptly, accurately and truthfully complete all forms provided by the Companys
Compliance Committee and shall fully cooperate in any background investigation conducted pursuant
to the Companys Compliance Program. Executive shall also promptly apply for all applicable gaming
licenses, if required, to the extent Executive is not already licensed or on file as of the date
hereof. If Executive fails to be recommended for approval and retention by the Compliance
Committee or Executive fails to be licensed in all jurisdictions in which the Company or its
subsidiaries has gaming facilities within the date required by any jurisdiction, or if any of such
licenses shall be revoked or suspended at any time during the Term, or if the Company is directed
to cease business with Executive by any governmental authority; or if the Company determines in its
reasonable judgment that Executive was or might be involved in, or is about to be involved in, any
activity, relationship(s) or circumstance which could or does jeopardize the Companys business,
reputation or any of such licenses; or any of the Companys licenses is threatened to be, or is,
denied, curtailed, suspended or revoked as a result of Executives employment by the Company or as
a result of his actions, then the Company may by thirty (30) days written notice to Executive
terminate the Agreement for Cause. Executive agrees to promptly submit to the licensing
requirements of all jurisdictions in which the Company or its subsidiaries does business. The
Company shall bear all expenses incurred in connection with such licenses.
6.2 Death or Disability. This Agreement shall terminate on the death or Disability
of Executive. Executive will be deemed to have a Disability when he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a substantially continuous
period of not less than 180 days, or begins receiving income replacement benefits for a period of
not less than three months under an accident and health plan of the Company or an affiliate by
reason of any medically determinable physical or mental impairment which can be expected to result
in death or can be expected to last for a continuous period of not less than 6 months. If there
should be a dispute between the Company and Executive as to Executives physical or mental
Disability for purposes of this Agreement, the question shall be settled by the opinion of an
impartial reputable physician or psychiatrist agreed upon by the parties or their representatives,
or if the parties cannot agree within ten (10) days after a request for designation of such party,
then a physician or psychiatrist designed by the Clark County Medical Association or similar body.
The certification of such a physician or psychiatrist as to the questioned dispute shall be final
and binding upon the parties hereto.
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6.3 Termination Without Cause. Notwithstanding anything to the contrary herein, the
Company shall have the right to terminate Executives employment under this Agreement at any time
without Cause by giving thirty (30) days written notice of such termination to Executive. Failure
by the Company to extend the Term for any Renewal Period shall not be a termination of this
Agreement Without Cause.
6.4 Termination by Executive for Good Reason. Executive may terminate his employment
under this Agreement on thirty (30) days prior notice to the Company for good reason (Good
Reason). For purposes of this Agreement, Good Reason shall mean and be limited to (i) a
material breach of this Agreement by the Company (including without limitation the assignment to
Executive of duties materially inconsistent with his status Chief Financial Officer of the
Company), or any material reduction in the authority, duties or responsibilities of Executive; (ii)
any relocation of his or its principal place of business outside the greater Las Vegas metropolitan
area (without Executives consent); (iii) a material reduction by the Company in Executives then
Base Salary or Bonus targets, a material reduction in other benefits (except as such benefits may
be changed or reduced for other senior executives), or the failure by the Company to pay Executive
any material portion of his current compensation when due; or (iv) following a Change in Control,
(A) the failure of any acquiring or successor company, or, if the acquiring or successor company is
a subsidiary of another company, the failure of the highest-level parent of the acquiring or
successor company, to enter into an agreement naming Executive as the Chief Financial Officer of
the acquiring or successor company, or of the highest-level parent, as the case may be; or (B)
Executives termination for Good Reason from the Company and any parent entity or termination
without cause by the Company and any parent entity within eighteen (18) months of a Change in
Control. Notwithstanding the foregoing, except with respect to a termination by Executive
following a Change in Control, Executives resignation shall not be treated as a resignation for
Good Reason unless (a) Executive notifies the Company (including any acquiring and/or successor
company) in writing of a condition constituting Good Reason within thirty (30) days following
Executives becoming aware of such condition; (b) the Company fails to remedy such condition within
thirty (30) days following such written notice (the Remedy Period); and (c) Executive resigns
within thirty (30) days following the expiration of the Remedy Period. Further, in the event that
Executive resigns for Good Reason and within two years from such date accepts employment with the
Company, any acquirer or successor to the Companys business or any affiliate, parent, or
subsidiary of either the Company or its successor, then Executive will forfeit any right to
severance payments hereunder and will reimburse the Company for the full amount of such payments
received by Executive within thirty (30) days of accepting such employment.
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6.5 Effect of Termination.
6.5.1 Payment of Salary and Expenses Upon Termination. Any termination under this
Section 6 shall be effective upon receipt of notice by Executive or the Company, as the case may
be, of such termination or upon such other later date as may be provided herein or specified by
the Company or Executive in the notice (the Termination Date), except as otherwise provided in
this Section 6. If this Agreement is terminated, all benefits provided to Executive by the Company
hereunder shall thereupon cease, except as provided in this Section 6.5, and the Company shall pay
or cause to be paid to Executive all accrued but unpaid base salary, any compensation previously
voluntarily deferred by Executive payable in accordance
with the provisions of the applicable deferred compensation plan and in accordance with
Executives election under such plan, and, except in the case of Termination for Cause, as
additional severance and notwithstanding the provisions of Section 3.2 hereof, a prorated bonus for
the year of termination. Such prorated bonus shall be determined and paid as follows: (a) First,
the performance criteria shall be applied to the entire year of termination to determine the bonus
that Executive would have received for the entire year if his employment had not terminated, (b)
Second, amount determined under clause (a) of this sentence shall be multiplied by a fraction, the
numerator of which is the number of days in the year before the date of the termination of
Executives employment and the denominator of which is three hundred sixty five (365), to determine
the amount of the prorated bonus, and (c) Third, the prorated bonus shall be paid at the times and
in the form specified when the Compensation Committee determined the performance criteria for the
year, or, if no such time was then specified, within ninety (90) days after the end of the year in
which the termination of employment occurred. If at the Termination Date, Executive shall have
satisfied all the requirements to earn an annual bonus relative to the calendar year immediately
preceding the Termination Date but such bonus has not yet been paid, then except in the case of a
Termination for Cause, such bonus shall be paid to Executive at the same time such bonus was
otherwise scheduled to have been paid. In addition, promptly upon submission by Executive of his
unpaid expenses incurred prior to the Termination Date and owing to Executive pursuant to Article
5, reimbursement for such expenses shall be made. If the Agreement is terminated for Cause, or
by the Executive without Good Reason, Executive shall not be entitled to receive any payments
other than as specified in this Section 6.5.1. Termination by the Company for Cause shall be in
addition to and without prejudice to any other right or remedy that the Company may be entitled to
at law, in equity, or under this Agreement.
6.5.2 Termination Without Cause or Termination by Executive for Good Reason Other than in
Connection with a Change of Control or due to Death or Disability. If the Company terminates
Executive without Cause or Executive terminates for Good Reason other than in connection with a
Change of Control as contemplated by Section 6.5.3, or due to death or disability, the following
shall apply (but, except as provided in Section 9.2 hereof, only clause (b) hereof in the case of
death or disability):
(a) | Executive shall be entitled to receive an amount equal to one hundred fifty percent (150%) times (i) Executives annual base salary (the Base Severance Benefit) in effect on the date of termination; plus (ii) the Bonus Amount (as hereinafter defined). The Bonus Amount shall equal the average annual bonus paid to Executive in the three years prior to termination (or such shorter period, during which Executive is employed); provided, however, for purposes of calculating the Bonus Amount, any bonus paid to Executive for any period less than a full calendar year shall be annualized. The Base Severance Benefit shall be paid to Executive in equal monthly installments over eighteen (18) months immediately following the date of termination in accordance with the Companys regular salary payment schedule from time to time. The Bonus Amount shall be paid in two equal annual installments on the first and second anniversaries of the termination of employment. In addition, Executive shall be entitled to receive any amounts payable under Section 6.5.1 above. The payments contemplated herein shall not be subject to any duty of mitigation by Executive nor to offset for any income earned by Executive following termination. |
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(b) | Executive shall also be entitled to receive health benefits coverage for Executive and his dependents, and disability insurance coverage for Executive, under the same plan(s) or arrangement(s) under which Executive and his dependents were covered immediately before his death or Disability or plan(s) established or arrangement(s) provided by the Company or any of its Subsidiaries thereafter for the benefit of senior executives (the Health and Disability Coverage Continuation) until the earliest of (i) eighteen (18) months; and (ii) the date Executive (and in the case of his dependents, the dependents) becomes covered or eligible for coverage under any other group health plan or group disability plan (as the case may be) not maintained by the Company or any of its Subsidiaries; provided, however, that if such other group health plan excludes any pre-existing condition that Executive or Executives dependents may have when coverage under this Section 6.5.2 shall continue (but not beyond the period described in clause (i) of this sentence) with respect to such pre-existing condition until such exclusion under such other group health plan lapses or expires. Executive or his dependents, as the case may be, shall pay any applicable premiums or other required payments for their health coverage on the same basis as other senior executives of the Company. In the event Executive is required to make an election under Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (commonly known as COBRA) to qualify for the benefits described in this Section 6.5.2, the obligations of the Company and its Subsidiaries under this Section 6.5.2 shall be conditioned upon Executives timely making such an election. Nothing contained herein shall prevent Executive or his dependants from securing continued coverage under COBRA at their own expense to the extent permitted by COBRA or otherwise applicable law. Any payment or reimbursement of benefits under this Section 6.5.2 that is taxable to Executive or his dependents shall be made by December 31 of the calendar year following the calendar year in which Executive or his dependent incurred the expense. Expenses eligible for reimbursement in any one taxable year shall not affect the amount of expenses eligible for reimbursement in any other taxable year, and the right to expense reimbursement shall not be subject to liquidation or exchange for any other benefit. |
(c) | Any outstanding unvested stock options, restricted stock or restricted stock units (collectively Equity Grants) at the date of termination which would otherwise vest during the twelve (12) months following termination shall immediately become vested and may be exercised in accordance with their terms for the period provided in Section 6.6. The remaining unvested Equity Grants shall immediately terminate. |
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6.5.3 Termination Without Cause or Termination by Executive for Good Reason in Connection
With or Within the Eighteen (18) Months After a Change of Control. If the Company terminates
Executive without Cause or Executive terminates for Good Reason in connection with or within
eighteen (18) months after a Change of Control, the following shall apply:
(a) | The Company shall pay to Executive in lieu of the Base Severance Benefit, in a lump sum as soon as practicable, but in no event later than thirty (30) days after the termination of Executives employment, (i) an amount (the Change of Control Severance Benefit) equal to one hundred fifty percent (150%) of the sum of Executives annual base salary in effect on the date of termination and the Bonus Amount, plus (ii) any amounts payable under Section 6.5.1. In addition, Executive shall also be entitled to receive continuation of health and disability insurance coverage as specified in Section 6.5.2(b) and all unvested Equity Grants, including any unvested replacement Equity Grants that may have been granted to Executive to replace unvested Equity Grants that expired by their terms in connection with a Change of Control, shall immediately become vested and may be exercised in accordance with their terms and Section 6.6 hereof. To the extent that any unvested Equity Grants terminate by their terms at the time of or in connection with a Change of Control and replacement Equity Grants of at least equivalent value are not granted to Executive, the Executive shall receive as additional cash severance at the time of termination the consideration paid for the securities underlying the unvested expired Equity Grants at the time of the Change of Control less, to the extent applicable, (a) the exercise price or other consideration payable by Executive for the Equity Grants; and (b) the value of any replacement Equity Grants realized by Executive through or as a result of such termination. |
(b) | For purposes of this Agreement, a Change of Control shall mean the occurrence of any of the following: |
(i) | The direct or indirect acquisition by an unrelated Person or Group or Beneficial Ownership (as such terms are defined below) of more than 50% of the voting power of the Companys issued and outstanding voting securities in a single transaction or a series of related transactions; |
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(ii) | The direct or indirect sale or transfer by the Company of substantially all of its assets to one or more unrelated Persons or Groups in a single transaction or a series of related transactions; |
(iii) | The merger, consolidation or reorganization of the Company with or into another corporation or other entity in which the Beneficial Owners of more than 50% of the voting power of the Companys issued and outstanding voting securities immediately before such merger or consolidation do not own more than 50% of the voting power of the issued and outstanding voting securities of the surviving corporation or other entity immediately after such merger, consolidation or reorganization; or |
(iv) | During any consecutive 12-month period, individuals who at the beginning of such period constituted the Board of the Company (together with any new Directors whose election to such Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of the Company then in office. |
None of the foregoing events, however, shall constitute a Change of Control if such event is
not a Change in Control Event under Treasury Regulation Section 1.409A-3(i)(5) or successor IRS
guidance. For purposes of determining whether a Change of Control has occurred, the following
Persons and Groups shall not be deemed to be unrelated: (A) such Person or Group directly or
indirectly has Beneficial Ownership of more than 50% of the issued and outstanding voting power of
the Companys voting securities immediately before the transaction in question, (B) the Company has
Beneficial Ownership of more than 50% of the voting power of the issued and outstanding voting
securities of such Person or Group, or (C) more than 50% of the voting power of the issued and
outstanding voting securities of such Person or Group are owned, directly or indirectly, by
Beneficial Owners of more than 50% of the issued and outstanding voting power of the Companys
voting securities immediately before the transaction in question. The terms Person, Group,
Beneficial Owner, and Beneficial Ownership shall have the meanings used in the Securities
Exchange Act of 1934, as amended. Notwithstanding the foregoing, (I) Persons shall not be
considered to be acting as a Group solely because they purchase or own stock of the Company at
the same time, or as a result of the same public offering, (II) however, Persons will be considered
to be acting as Group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction, with the Company,
and (III) if a Person, including an entity, owns stock both in the Company and in a corporation
that enters into a merger, consolidation, purchase or acquisition of stock, or similar transaction,
with the Company, such
shareholders shall be considered to be acting as a Group with other shareholders only with
respect to the ownership in the corporation before the transaction.
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6.5.4 I.R.C. Section 409A. (a) The compensation arrangements under this Agreement
are intended to comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986,
as amended, and the regulations and guidance promulgated thereunder (collectively Code Section
409A), and will be interpreted in a manner intended to comply with, or be exempt from, Code
Section 409A. If any payment of money or other benefits due to the Executive hereunder could cause
the application of an accelerated or additional tax under Code Section 409A (a 409A Tax), the
Company, in its sole discretion, may decide such payments or other benefits shall be restructured,
to the extent possible, in a manner, determined by the Company, that does not cause such 409A Tax;
provided, however, neither the Company, nor its respective officers, employees and/or
representatives, shall have any liability to the Executive with respect to any such determination,
or any such taxes, interest or penalties, or liability for nay other alleged damages related
thereto. (b) In the event that any compensation with respect to Executives separation from
service is deferred compensation within the meaning of Code Section 409A, the stock of the
Company or any affiliate is publicly traded on an established securities market or otherwise, and
Executive is determined to be a specified employee, as defined in Section 409A(a)(2)(B)(i) of the
Code, payment of such compensation shall be delayed as required by Code Section 409A. Such delay
shall last six months from the date of Executives separation from service, except in the event of
Executives death. Within thirty (30) days following the end of such six-month period, or, if
earlier, Executives death, the Company will make a catch-up payment to Executive equal to the
total amount of such payments that would have been made during the six-month period but for this
Section 6.5.4. Whenever payments under this Agreement are to be made in installments, each such
installment shall be deemed to be a separate payment for purposes of Section 409A. Payments of
compensation or benefits on Executives termination of employment (other than accrued salary and
other accrued amounts that must be paid under applicable law, and welfare benefits specified in
Treasury Regulations Section 1.409A-1(a)(5)) shall be paid only if and when the termination of
employment constitutes a separation from service under Treasury Regulation Section 1.409A-1(h).
6.5.5 Suspension. In lieu of terminating Executives employment hereunder for Cause
under Section 6.1, the Company shall have the right, at its sole election, to suspend the
performance of duties by Executive under this Agreement during the continuance of events or
circumstances under Section 6.1 for an aggregate of not more than thirty (30) days during the Term
(the Default Period) by giving Executive written notice of the Companys election to do so at any
time during the Default Period. The Company shall have the right to extend the Term beyond its
normal expiration date by the period(s) of any suspension(s). The Companys exercise of its right
to suspend the operation of this Agreement shall not preclude the Company from subsequently
terminating Executives employment hereunder; provided nothing herein shall eliminate the Companys
obligation to provide required written notice, or prevent Executive from having the opportunity to
cure any defect raised in such notice, to the extent applicable under the relevant subsection of
Section 6.1. Executive shall not render services to any other person, firm or corporation in the
casino business during any period of suspension. Executive shall be entitled to continued
compensation and benefits pursuant to the provisions of this Agreement during the Default Period.
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6.6 Exercisability of Equity Grants. All vested Equity Grants will terminate on the
earlier of (a) the expiration of their stated terms or (b) one (1) year after the termination of
Executives employment with the Company, regardless of the cause of such termination, except that,
in the event of a termination for Cause or Executives termination without Good Reason, all
vested Equity Grants will terminate on the earlier of (I) the expiration of the stated term, or
(II) thirty (30) days after the termination. As provided in the Equity Grants, agreements,
unvested Equity Grants will terminate on the termination of Executives continuous status as an
employee, director, or consultant with the Company, except to the extent that such Equity Grants
become vested as a result of such termination under the terms of the governing Equity Grant
agreement or this Agreement.
6.7 No-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit
Executives continuing or future participation in any plan, program, policy or practice provided by
the Company or its subsidiaries and for which the Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as Executive may have under any other contract or agreement
with the Company or its subsidiaries at or subsequent to the Date of Termination (Other
Benefits), which such Other Benefits shall be payable in accordance with such plan, policy,
practice or program or contract or agreement, except as explicitly modified by this Agreement.
Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Article VI
of this Agreement, Executive shall not be entitled to any severance pay or benefits under any
severance plan, program or policy of the Company and its subsidiaries, unless otherwise
specifically provided therein in a specific reference in or to this Agreement.
6.8 Full Settlement. Except as expressly provided for herein, in no event shall
Executive be obligated to seek other employment or take any other action by way of mitigation of
the amounts payable to Executive under any of the provisions of this Agreement and such amounts
shall not be reduced whether or not Executive obtains other employment.
6.9 Release. It shall be a condition for Executives right to receive any severance
benefits hereunder that he execute a general release in favor of the Company and its affiliates in
the form as attached hereto and Appendix B and covering such additional matters as may be
reasonably requested by the Company, which release shall not encompass the payments contemplated
hereby. The timing of payments under this Agreement upon the execution of the general release
shall be governed by the following provisions:
(a) | The Company must deliver the release to Executive for execution no later than fourteen (14) days after Executives termination of employment. If the Company fails to deliver the release to Executive within such fourteen (14) day period, Executive will be deemed to have satisfied the release requirement and will receive payments conditioned on execution of the release as though Executive had executed the release and all revocation rights had lapsed at the end of such 14 day period. |
(b) | Executive must execute the release within forty-five (45) days from its delivery to him. |
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(c) | If Executive has revocation rights, Executive shall exercise such rights, if at all, not later than seven (7) days after executing the release. |
(d) | In any case in which the release (and the expiration of any revocation rights) could only become effective in a particular tax year of Executive, payments conditioned on execution of the release shall begin within twenty (20) days after the release becomes effective and revocation rights have lapsed. |
(e) | In any case in which the release (and the expiration of any revocation rights) could become effective in one of two taxable years of Executive depending on when Executive executes the release, payments conditioned on execution of the release shall not begin before the first business day of the later of such tax years. |
6.10 Excise Tax Limitation.
6.10.1 Notwithstanding anything contained in this Agreement to the contrary, (i) in the event
that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to be paid or
made payable to Executive or for Executives benefit pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, Executives employment with the Company or any of
its Subsidiaries on a change of control within the meaning of Section 280G of the Code (a
Payment or Payments) would be subject to the excise tax imposed by Section 4999 of the Code
(the Excise Tax), and (ii) (A) the net amount of the Payments Executive would retain after
payment of the Excise Tax and federal and state income taxes on the Payments would be less than (B)
the net amount of the Payments Executive would retain, after payment of the Excise Tax and federal
and state income taxes on the Payments, if the Payments were reduced to the extent necessary that
no portion of the Payments would be subject to the Excise Tax (the Section 4999 Limit), then the
Payments shall be reduced (but not below zero) to the Section 4999 Limit. Unless Executive shall
have given prior written notice specifying a different order to the Company to effectuate the
limitations described in the preceding sentence, the Company shall reduce or eliminate the Payments
by first reducing or eliminating those Payments or benefits which are not payable in cash and then
by reducing or eliminating cash Payments, in each case in reverse order beginning with payments or
benefits which are to be paid the farthest in time from the Determination (as hereinafter defined).
Any notice given by Executive pursuant to the preceding sentence shall take precedence over the
provisions of any other Agreement, arrangement or agreement governing Executives rights and
entitlements to any benefits or compensation. For purposes of the calculations described above, it
shall be assumed that Executives tax rate will be the maximum marginal federal and state income
tax rate on earned income.
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6.10.2 All determinations required to be made under this Section 6.10 (each, a
Determination) shall be made, at the Companys expense, by the accounting firm which is the
Companys accounting firm prior to a change of control (within the meaning of Section 280G of the
Code) or another nationally recognized accounting firm designated by the Board (or a committee
thereof) prior to the change of control (the Accounting Firm). The Accounting
Firm shall provide its calculations, together with detailed supporting documentation, both to
the Company and to Executive before payment of Executives Severance Payment hereunder (if
requested at that time by the Company or Executive) or such other time as requested by the Company
or Executive (in either case provided that the Company or Executive believes in good faith that any
of the Payments may be subject to the Excise Tax). Within ten (10) calendar days of the delivery
of the Determination to Executive, Executive shall have the right to dispute the Determination (the
Dispute). The existence of any Dispute shall not in any way affect Executives right to receive
the Payments in accordance with the Determination. If there is no Dispute, the Determination by
the Accounting Firm shall be final, binding and conclusive upon the Company and Executive, subject
to the application of Section 6.10.3.
6.10.3 As a result of the uncertainty in the application of Sections 4999 and 280G of the
Code, it is possible that the Payments either will have been made or will not have been made by the
Company, in either case in a manner inconsistent with the limitations provided in Section 6.10.1
(an Excess Payment or Underpayment, respectively). If it is established pursuant to (i) a
final determination of a court for which all appeals have been taken and finally resolved or the
time for all appeals has expired, or (ii) an Internal Revenue Service (the IRS) proceeding which
has been finally and conclusively resolved, that an Excess Payment has been made, such Excess
Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive
received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand,
together with interest on the Excess Payment at one hundred twenty percent (120%) of the applicable
federal rate (as defined in Section 1274(d) of the Code) compounded semi-annually from the date of
Executives receipt of such Excess Payment until the date of such repayment. If it is determined
(i) by the Accounting Firm, the Company (which shall include the position taken by the Company,
together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant
to a determination by a court, or (iii) upon the resolution to Executives satisfaction of the
Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the
Underpayment to Executive within ten (10) calendar days of such determination or resolution,
together with interest on such amount at one hundred twenty percent (120%) of the applicable
federal rate compounded semi-annually from the date such amount should have been paid to Executive
pursuant to the terms of this Agreement or otherwise, but for the operation of this Section 6.10.3,
until the date of payment.
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ARTICLE 7.
CONFIDENTIALITY
7.1 Nondisclosure of Confidential Material. In the performance of his duties,
Executive may have access to confidential records, including, but not limited to, development,
marketing, organizational, financial, managerial, administrative and sales information, data,
specifications and processes presently owned or at any time hereafter developed or used by the
Company or its agents or consultants that is not otherwise part of the public domain (collectively,
the Confidential Material). All such Confidential Material is considered secret and is disclosed
to Executive in confidence. Executive acknowledges that the Confidential Material constitutes
proprietary information of the Company which draws independent economic value, actual or potential,
from not being generally known to the public or to other persons who could obtain economic value
from its disclosure or use, and that the Company has taken efforts reasonable
under the circumstances, of which this Section 7.1 is an example, to maintain its secrecy.
Except in the performance of his duties to the Company or as required by a court order or any
gaming regulator or as required for his personal tax or legal advisors to advise him, Executive
shall not, directly or indirectly for any reason whatsoever, disclose, divulge, communicate, use or
otherwise disclose any such Confidential Material, unless such Confidential Material ceases to be
confidential because it has become part of the public domain (not due to a breach by Executive of
his obligations hereunder). Executive shall also take all reasonable actions appropriate to
maintain the secrecy of all Confidential Information. All records, lists, memoranda,
correspondence, reports, manuals, files, drawings, documents, equipment, and other tangible items
(including computer software), wherever located, incorporating the Confidential Material, which
Executive shall prepare, use or encounter, shall be and remain the Companys sole and exclusive
property and shall be included in the Confidential Material. Upon termination of this Agreement,
or whenever requested by the Company, Executive shall promptly deliver to the Company any and all
of the Confidential Material, not previously delivered to the Company, that is in the possession or
under the control of Executive.
7.2 Assignment of Intellectual Property Rights. Any ideas, processes, know-how,
copyrightable works, maskworks, trade or service marks, trade secrets, inventions, developments,
discoveries, improvements and other matters that may be protected by intellectual property rights,
that relate to the Companys business and are the results of Executives efforts during the Term
(collectively, the Executive Work Product), whether conceived or developed alone or with others,
and whether or not conceived during the regular working hours of the Company, shall be deemed works
made for hire and are the property of the Company. In the event that for whatever reason such
Executive Work Product shall not be deemed a work made for hire, Executive agrees that such
Executive Work Product shall become the sole and exclusive property of the Company, and Executive
hereby assigns to the Company his entire right, title and interest in and to each and every patent,
copyright, trade or service mark (including any attendant goodwill), trade secret or other
intellectual property right embodied in Executive Work Product. The Company shall also have the
right, in its sole discretion to keep any and all of Executive Work Product as the Companys
Confidential Material. The foregoing work made for hire and assignment provisions are and shall be
in consideration of this agreement of employment by the Company, and no further consideration is or
shall be provided to Executive by the Company with respect to these provisions. Executive agrees to
execute any assignment documents the Company may require confirming the Companys ownership of any
of Executive Work Product. Executive also waives any and all moral rights with respect to any such
works, including without limitation any and all rights of identification of authorship and/or
rights of approval, restriction or limitation on use or subsequent modifications. Executive
promptly will disclose to the Company any Executive Work Product.
7.3 No Unfair Competition After Termination of Agreement. Executive hereby
acknowledges that the sale or unauthorized use or disclosure of any of the Companys Confidential
Material obtained by Executive by any means whatsoever, at any time before, during or after the
Term shall constitute unfair competition. Executive shall not engage in any unfair competition with
the Company either during the Term or at any time thereafter.
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7.4 Covenant Not to Compete. In the event this Agreement is terminated by the Company
or by Executive, for a reason other than one specified in Section 6.2 above or the
expiration of the Initial Term or any Renewal Term without this Agreement being renewed, then
for a period of one year after the effective date of such termination (but only six months in the
case of an entity whose only competitive relationship with the Company is in the market in which
the Company has its principal place of business but does not also own or manage a casino),
Executive shall not, directly or indirectly, work for or provide services to or own an equity
interest (except for a Permissible Investment) in any person, firm or entity engaged (directly or
indirectly or through an investment in another entity) in the casino, gaming, card club or
horseracing business which competes against the Company in any market in which the Company has
its principal place of business or in which the Company owns (in whole or in part, directly or
through an investment in another entity) or operates a casino, card club or horseracing facility.
For purposes of this Agreement, market shall be defined as the area within a 100 mile radius of
the Companys principal place of business or of any casino, card club or horseracing facility owned
(in whole or in part, directly or through an investment in another entity) or operated or under
construction by the Company.
7.5 No Hire Away Policy. In the event this Agreement is terminated prior to the
normal expiration of the Term, either by the Company, or by Executive, for any reason, then for a
period of one (1) year after the effective date of such termination, Executive shall not, directly
or indirectly, for himself or on behalf of any entity with which he is affiliated or employed, hire
any person known to Executive to be an employee of the Company or any of its subsidiaries (or any
person known to Executive to have been such an employee within six (6) months prior to such
occurrence). Executive shall not be deemed to hire any such person so long as he did not directly
or indirectly engage in or encourage such hiring.
7.6 No Solicitation. During the Term and for a period of one (1) year thereafter, or,
if sooner, for a period of one (1) year after earlier termination of this Agreement prior to
expiration of the Term, and regardless of the reason for such termination (whether by the Company
or Executive), Executive shall not directly or indirectly, for himself or on behalf of any entity
with which he is affiliated or employed, solicit any employee of the Company or any of its
subsidiaries (or any person who was such an employee within six (6) months prior to such
occurrence) or encourage any such employee to leave the employment of the Company or any of its
subsidiaries.
7.7 Non-Solicitation of Customers. During the Term and for a period of one (1) year
thereafter, or, if sooner, for a period of one (1) year after the earlier termination of this
Agreement prior to the expiration of the Term, and regardless of the reason for such termination
(whether by the Company or Executive), Executive shall not solicit any customers of the Company or
its subsidiaries or any of their respective casinos or card clubs, or knowingly encourage any such
customers to leave the Companys casinos or card clubs or knowingly encourage any such customers to
use the facilities or services of any competitor of the Company or its subsidiaries. Executive
shall at no times use proprietary customer lists or Confidential Material to solicit customers.
7.8 Irreparable Injury. The promised service of Executive under this Agreement and
the other promises of this Article 7 are of special, unique, unusual, extraordinary, or
intellectual character, which gives them peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law.
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7.9 Remedies for Breach. Executive agrees that money damages will not be a sufficient
remedy for any breach of the obligations under this Article 7 and Article 2 hereof and that the
Company shall be entitled to injunctive relief (which shall include, but not be limited to,
restraining Executive from directly or indirectly working for or having an ownership interest
(except for a Permissible Investment) in any person engaged in the casino, gaming or horseracing
businesses in any market which the Company or its affiliates owns or operates any such business,
using or disclosing the Confidential Material) and to specific performance as remedies for any such
breach. Executive agrees that the Company shall be entitled to such relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions, without the necessity of
proving actual damages and without the necessity of posting a bond or making any undertaking in
connection therewith. Any such requirement of a bond or undertaking is hereby waived by Executive
and Executive acknowledges that in the absence of such a waiver, a bond or undertaking might
otherwise be required by the court. Such remedies shall not be deemed to be the exclusive remedies
for any breach of the obligations in this Article 7, but shall be in addition to all other remedies
available at law or in equity.
ARTICLE 8.
ARBITRATION
8.1 General. Except for a claim for injunctive relief under Section 7.9, any
controversy, dispute, or claim between the parties to this Agreement, including any claim arising
out of, in connection with, or in relation to the formation, interpretation, performance or breach
of this Agreement shall be settled exclusively by arbitration, before a single arbitrator, in
accordance with this Article 8 and the then most applicable rules of the American Arbitration
Association. Judgment upon any award rendered by the arbitrator may be entered by any state or
federal court having jurisdiction thereof. Such arbitration shall be administered by the American
Arbitration Association. Arbitration shall be the exclusive remedy for determining any such
dispute, regardless of its nature. Notwithstanding the foregoing, either party may in an
appropriate matter apply to a court for provisional relief, including a temporary restraining order
or a preliminary injunction, on the ground that the award to which the applicant may be entitled in
arbitration may be rendered ineffectual without provisional relief. Unless mutually agreed by the
parties otherwise, any arbitration shall take place in Las Vegas, Nevada.
8.2 Selection of Arbitrator. In the event the parties are unable to agree upon an
arbitrator, the parties shall select a single arbitrator from a list of nine arbitrators drawn by
the parties at random from the Independent (or Gold Card) list of retired judges or, at the
option of Executive, from a list of nine persons (which shall be retired judges or corporate or
litigation attorneys experienced in executive employment agreements) provided by the office of the
American Arbitration Association having jurisdiction over Las Vegas, Nevada. If the parties are
unable to agree upon an arbitrator from the list so drawn, then the parties shall each strike names
alternately from the list, with the first to strike being determined by lot. After each party has
used four strikes, the remaining name on the list shall be the arbitrator. If such person is
unable to serve for any reason, the parties shall repeat this process until an arbitrator is
selected.
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8.3 Applicability of Arbitration; Remedial Authority. This agreement to resolve any
disputes by binding arbitration shall extend to claims against any parent, subsidiary or affiliate
of
each party, and, when acting within such capacity, any officer, director, stockholder,
employee or agent of each party, or of any of the above, and shall apply as well to claims arising
out of state and federal statutes and local ordinances as well as to claims arising under the
common law. In the event of a dispute subject to this paragraph the parties shall be entitled to
reasonable discovery subject to the discretion of the arbitrator. The remedial authority of the
arbitrator (which shall include the right to grant injunctive or other equitable relief) shall be
the same as, but no greater than, would be the remedial power of a court having jurisdiction over
the parties and their dispute. The arbitrator shall, upon an appropriate motion, dismiss any claim
without an evidentiary hearing if the party bringing the motion establishes that he or it would be
entitled to summary judgment if the matter had been pursued in court litigation. In the event of a
conflict between the applicable rules of the American Arbitration Association and these procedures,
the provisions of these procedures shall govern.
8.4 Fees and Costs. Any filing or administrative fees shall be borne initially by the
party requesting arbitration. The Company shall be responsible for the costs and fees of the
arbitration, unless Executive wishes to contribute (up to 50%) of the costs and fees of the
arbitration. Notwithstanding the foregoing, the prevailing party in such arbitration, as
determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled,
to the extent permitted by law, to reimbursement from the other party for all of the prevailing
partys costs (including but not limited to the arbitrators compensation), expenses, and
attorneys fees.
8.5 Award Final and Binding. The arbitrator shall render an award and written
opinion, and the award shall be final and binding upon the parties. If any of the provisions of
this paragraph, or of this Agreement, are determined to be unlawful or otherwise unenforceable, in
whole or in part, such determination shall not affect the validity of the remainder of this
Agreement, and this Agreement shall be reformed to the extent necessary to carry out its provisions
to the greatest extent possible and to insure that the resolution of all conflicts between the
parties, including those arising out of statutory claims, shall be resolved by neutral, binding
arbitration. If a court should find that the arbitration provisions of this Agreement are not
absolutely binding, then the parties intend any arbitration decision and award to be fully
admissible in evidence in any subsequent action, given great weight by any finder of fact, and
treated as determinative to the maximum extent permitted by law.
ARTICLE 9.
MISCELLANEOUS
9.1 Amendments. The provisions of this Agreement may not be waived, altered, amended
or repealed in whole or in part except by the signed written consent of the parties sought to be
bound by such waiver, alteration, amendment or repeal.
9.2 Entire Agreement. This Agreement and the stock option and other equity grant
agreements between the Company and Executive constitute the total and complete agreement of the
parties and, except as provided below, supersedes all prior and contemporaneous understandings and
agreements heretofore made, including the Employment Agreement, and there are no other
representations, understandings or agreements. Notwithstanding the
foregoing, should Executive die or become disabled on or before August 1, 2011, then the
provisions of Section 6.5.2 of the Employment Agreement shall apply (without duplication for any
benefits provided in this Agreement).
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9.3 Counterparts. This Agreement may be executed in one of more counterparts, each of
which shall be deemed and original, but all of which shall together constitute one and the same
instrument.
9.4 Severability. Each term, covenant, condition or provision of this Agreement shall
be viewed as separate and distinct, and in the event that any such term, covenant, condition or
provision shall be deemed by an arbitrator or a court of competent jurisdiction to be invalid or
unenforceable, the court or arbitrator finding such invalidity or unenforceability shall modify or
reform this Agreement to give as much effect as possible to the terms and provisions of this
Agreement. Any term or provision which cannot be so modified or reformed shall be deleted and the
remaining terms and provisions shall continue in full force and effect.
9.5 Waiver or Delay. The failure or delay on the part of the Company, or Executive to
exercise any right or remedy, power or privilege hereunder shall not operate as a waiver thereof.
A waiver, to be effective, must be in writing and signed by the party making the waiver. A written
waiver of default shall not operate as a waiver of any other default or of the same type of default
on a future occasion.
9.6 Successors and Assigns. This Agreement shall be binding on and shall inure to the
benefit of the parties to it and their respective heirs, legal representatives, successors and
assigns, except as otherwise provided herein. Except as provided in this Section 9.6, without the
prior written consent of Executive, this Agreement shall not be assignable by the Company. The
Company will 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
expressly 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. Company means the
Company as hereinbefore defined and any successor to its business and/or assets as aforesaid that
assumes and agrees to perform this Agreement by operation of law or otherwise.
9.7 No Assignment or Transfer by Executive. Neither this Agreement nor any of the
rights, benefits, obligations or duties hereunder may be assigned or transferred by Executive. Any
purported assignment or transfer by Executive shall be void.
9.8 Necessary Acts. Each party to this Agreement shall perform any further acts and
execute and deliver any additional agreements, assignments or documents that may be reasonably
necessary to carry out the provisions or to effectuate the purpose of this Agreement.
9.9 Governing Law. This Agreement and all subsequent agreements between the parties
shall be governed by and interpreted, construed and enforced in accordance with the laws of the
State of Nevada.
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9.10 Notices. All notices, requests, demands and other communications to be given
under this Agreement shall be in writing and shall be deemed to have been duly given on the date
of service, if personally served on the party to whom notice is to be given, or 48 hours after
mailing, if mailed to the party to whom notice is to be given by certified or registered mail,
return receipt requested, postage prepaid, and properly addressed to the party at his address set
forth as follows or any other address that any party may designate by written notice to the other
parties:
To Executive: | Carlos A. Ruisanchez | |||
8918 Spanish Ridge Avenue | ||||
Las Vegas, NV 89148 | ||||
Telephone: 702 784-7777 | ||||
Facsimile: 702 784-7773 | ||||
To the Company: | Pinnacle Entertainment, Inc. | |||
8918 Spanish Ridge Avenue | ||||
Las Vegas, NV 89148 | ||||
Attn: General Counsel | ||||
Telephone: 702 784-7777 | ||||
Facsimile: 702 784-7773 |
9.11 Headings and Captions. The headings and captions used herein are solely for the
purpose of reference only and are not to be considered as construing or interpreting the provisions
of this Agreement.
9.12 Construction. All terms and definitions contained herein shall be construed in
such a manner that shall give effect to the fullest extent possible to the express or implied
intent of the parties hereby.
9.13 Counsel. Executive has been advised by the Company that he should consider
seeking the advice of counsel in connection with the execution of this Agreement and Executive has
had an opportunity to do so. Executive has read and understands this Agreement, and has sought the
advice of counsel to the extent he has determined appropriate. The Company shall reimburse
Executive for the reasonable fees and expenses of Executives counsel in connection with this
Agreement not to exceed $10,000.
9.14 Withholding of Compensation. Executive hereby agrees that the Company may deduct
and withhold from the compensation or other amounts payable to Executive hereunder or otherwise in
connection with Executives employment any amounts required to be deducted and withheld by the
Company under the provisions of any applicable Federal, state and local statute, law, regulation,
ordinance or order.
9.15 References to Sections of the Code. All references in this Agreement and
Appendix A hereto to sections of the Code shall be to such sections and to any successor or
substantially comparable sections of the Code or to any successor thereto.
9.16 Effect of Delay. Executives or the Companys failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any right Executive or the
Company may have hereunder, including without limitation the right of Executive to
terminate employment for Good Reason pursuant to Section 6.5, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Employment
Agreement to be duly executed this 28th day of March, 2011.
THE COMPANY | PINNACLE ENTERTAINMENT, INC. | |||||||
By: | /s/ Anthony M. Sanfilippo
|
|||||||
Its: | President and Chief Executive Officer | |||||||
EXECUTIVE | CARLOS A. RUISANCHEZ | |||||||
/s/ Carlos A. Ruisanchez | ||||||||
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APPENDIX A
POLICY ON RECOVERY OF INCENTIVE COMPENSATION
IN EVENT OF FINANCIAL RESTATEMENT
IN EVENT OF FINANCIAL RESTATEMENT
The following rules shall apply if (1) there is a restatement of the Companys financial
statements for the fiscal year for which a bonus is paid, other than a restatement due to changes
in accounting principles or applicable law, and (2) the Compensation Committee determines that a
participant has received an excess bonus for the relevant fiscal year.
1. | The amount of the excess bonus shall be equal to the difference between the bonus paid to the participant and the payment or grant that would have been made based on the restated financial results. |
2. | The requirement to repay all or a portion of the excess bonus as determined by the Compensation Committee shall only exist if the Audit Committee has taken steps to consider restating the financials prior to the end of the third year following the year in question. |
3. | The Compensation Committee may take such action in its discretion that it determines appropriate to recover all or a portion of the excess bonus if it deems such action appropriate under the facts and circumstances. Such actions may include recovery of all or a portion of such amount from the participant from any of the following sources: prior incentive compensation payments, future payments of incentive compensation, cancellation of outstanding equity awards, future equity awards, gains realized on the exercise of stock options, and direct repayment by the participant. Participants receipt of the bonus constitutes his agreement that, if requested by the Compensation Committee, he shall repay to the Company the excess bonus (or that portion thereof specified by the Committee) within 90 days of the time that he is notified by the Committee of the overpayment. Application of this policy does not preclude the Company from taking any other action to enforce a participants obligations to the Company, including termination of employment or institution of civil or criminal proceedings. |
This Policy shall be applicable to all incentive compensation paid subsequent to the adoption
of the Policy.
This Policy is in addition to the requirements of Section 304 of the Sarbanes-Oxley Act of
2002 that are applicable to the Companys Chief Executive Officer and Chief Financial Officer.
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APPENDIX B
RELEASE and RESIGNATION
For valuable consideration, receipt of which is hereby acknowledged, the undersigned Carlos A.
Ruisanchez (Executive), for himself and his spouse, heirs, estate, administrators and executors,
hereby fully and forever releases and discharges Pinnacle Entertainment, Inc., a Delaware
corporation (the Company), and each of its subsidiaries and the officers, directors, employees,
attorneys and agents of the Company and each such subsidiary, of and from any and all claims,
demands, causes of action of any kind or nature, in law, equity or otherwise, whether known or
unknown, which Executive has had, may have had, or now has, or may have, arising out of or in
connection with Executives employment with the Company and/or its subsidiaries or the termination
of such employment; provided, however, that nothing contained herein is intended to nor shall
constitute a release of the Company from any obligations it may have to Executive under any written
employment agreement between Executive and the Company in effect as of the date hereof, or any
deferred compensation plan or arrangement in which Executive participates or any rights of
indemnification under the Companys Articles, Bylaws, Indemnity Trust Agreement or the like, or
coverage under Director and Officer Insurance, nor shall it prevent Executive from exercising his
rights, if any, under any such employment agreement or under any stock option, restricted stock or
similar agreement in effect as of the date hereof in accordance with their terms.
Executive represents and warrants that he has not assigned or in any way conveyed, transferred
or encumbered all or any portion of the claims or rights covered by this release.
Executive hereby resigns from all positions as an officer, director or employee of the Company
and each of its subsidiaries or affiliates effective the date hereof and further agrees to execute
such further evidence of such resignations as may be necessary or appropriate to effectuate the
foregoing.
Executed this
day of , 20.
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